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http://www.saychristmas.org/main/default.aspxMerry Christmas.It's okay to say it.™
I'M ASKING ALL AMERICANS TO BOYCOT ANY STORE OR MEDIA OUTLET THAT DOES NOT PROMOTE OR SAY MERRY CHRISTMAS
Attacks on Christmas
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About ADFMedia Kit (.pdf)While the majority of our nation celebrates Christmas, over the past several years, the ACLU and its allies have been working overtime to censor seasonal religious expression. These organizations falsely claim that it violates the so-called "separation of church and state." The following press releases provide real-life examples of cases and situations in which ADF and its allies defended religious expression at Christmastime.
Click here to sign up for email updates and learn more about ADF's ongoing efforts to protect your religious freedom.
ACLU Christmas censored in Jackson County, Georgia? - 11/29/2005An attorney with the Alliance Defense Fund has written a letter to the Jackson County School System informing them of the unconstitutionality of the district's censorship of anything religious related to the Christmas holiday.
read more... ACLU backs down in Louisiana nativity scene case - 8/12/2005In a settlement agreement negotiated by attorneys with the Alliance Defense Fund, the American Civil Liberties Union will no longer pursue its legal attack upon the Bossier Parish School District. ADF attorneys represent the district.
read more... Christmas in July: City wins again, ACLU loses - 7/7/2005A panel of the U.S. Court of Appeals for the 1st Circuit ruled unanimously Wednesday that a woman represented by the ACLU who sued the City of Cranston, R.I., after being offended by Christmas displays at City Hall had no standing to bring her claim.
read more... U.S. Department of Justice to write brief in support of ADF “candy cane” case - 2/7/2005The U.S. Department of Justice will write a brief in support of a lawsuit ADF attorneys filed against a Michigan school district last year. The school district prohibited a student from attaching a religious message to candy cane ornaments he passed out to classmates at Christmas.
read more... Good news on Christmas isn’t over - 12/27/2004In response to a letter written by an Alliance Defense Fund attorney, the Illinois attorney general’s office stated Thursday that county employees in the state are “free to include ‘Merry Christmas’ and other religious messages in their seasonal greetings at work.”
read more... Sweet victory: Christmas expression OK’d at Florida school - 12/22/2004Officials with Spanish River Community High School who refused to allow a student to distribute candy canes with a religious message to other students have changed their minds. The decision came after the principal of the school received a letter from an attorney with the Alliance Defense Fund explaining the law with regard to religious expression in the public schools.
read more... Latest figure: ADF has contacted more than 6,700 school districts nationwide regarding Christmas expression - 12/21/2004The Alliance Defense Fund has contacted more than 6,700 school districts across the nation within the last two months explaining the law with regard to the celebration of Christmas in the public schools.
read more... U.S. Department of Justice opens inquiry into Plano school’s restrictive Christmas policy - 12/16/2004The U.S. Department of Justice announced today that it is opening a “preliminary inquiry” into the Plano Independent School District.
read more... Plano school district bans Christmas colors - 12/15/2004Attorneys with the Alliance Defense Fund and Liberty Legal Institute filed a federal civil rights lawsuit today against the Plano Independent School District for a discriminatory policy that censors the Christmas religious expression of students and their parents.
read more... ADF attorneys: U.S. Constitution does not require Christmas to be removed from Mustang holiday play - 12/9/2004Attorneys with the Alliance Defense Fund, responding to an Oklahoma elementary school’s decision to remove all Christmas elements from its holiday play tonight, say the school’s actions are not in step with the law.
read more... Parents to speak out on Christmas music ban - 12/6/2004Parents opposed to the South Orange and Maplewood School District’s ban on Christmas music, including instrumental versions, plan to express their disapproval of the policy at tonight’s school board meeting.
read more... ADF clarifies the law for New Jersey school district banning instrumental Christmas carols - 11/19/2004An attorney allied with the Alliance Defense Fund in conjunction with the New Jersey Family Policy Council delivered a letter yesterday to the superintendent of the South Orange and Maplewood School District informing him that the district’s decision to ban Christmas carols, including instrumental songs, is legally unfounded.
read more... ADF contacts over 3,600 school districts nationwide regarding attempts to censor Christmas - 11/17/2004The Alliance Defense Fund has contacted over 3,600 school districts across the nation within the last month explaining the law with regard to the celebration of Christmas in the public schools.
read more... Early Christmas gift: City wins, ACLU loses - 11/15/2004A federal judge in Rhode Island today ruled that the City of Cranston’s practice of allowing private holiday displays, including religious displays, on the front lawn of City Hall does not violate the Establishment Clause of the Constitution.
read more... ADF tells school boards and NEA chapters nationwide: It’s Okay to Say Merry Christmas - 11/5/2004Today the Alliance Defense Fund delivered a letter to every state board of education and National Education Association (NEA) chapter in the country explaining the law with regard to the celebration of Christmas in the public schools.
read more... ADF: More than 700 attorneys nationwide ready to combat attempts to censor Christmas - 10/27/2004SCOTTSDALE, Ariz.—The Alliance Defense Fund announced today it has more than 700 attorneys available nationwide to combat any attempts to censor the celebration of Christmas in schools and on public property.
read more... ADF defends Christmas, even in June - 6/16/2004SAGINAW, MI — Fifth-grader Joel Curry had one chance at participating in his school’s "Classroom City," a simulation to teach economics and citizenship at Handley School for the gifted. Unfortunately, he was met with bigotry and censorship from public school officials.
read more... ACLU Aiming to Censor Christmas in Elizabeth, Colorado - 11/20/2003ELIZABETH, CO – The Colorado ACLU, a group that claims "to protect, defend and extend the civil rights and civil liberties of all Coloradans," is threatening to sue the Elbert County Charter School if the principal refuses to censor Christmas for the school’s children.
read more... Texas Elementary School Must Stop Censoring Christmas - 12/20/2002Katy, TX – The double-standard for religious expression at the Hazel S. Pattison Elementary School in Katy, Texas, has grown so intolerable this December that parents have been forced to seek legal help.
read more...Merry Christmas.It's okay to say it.™
Christmas is a cherished time of year when Americans come together and celebrate something bigger than ourselves, something that has united us for generations. An event that is the center of all history—the birth of Jesus Christ.
Surveys show that 95% of Americans celebrate Christmas. Yet, due to political correctness, disinformation, and even the threat of lawsuits from the ACLU and its allies, religious expression at Christmastime is increasingly absent from the public square. Slowly, this holy day is being turned into a secular “solstice season.” The Alliance Defense Fund works year-round to preserve and protect our religious liberties, including the right to… ...sing Christmas carols at school ...pass out candy canes to classmates ...call it “Christmas vacation” ...sponsor a nativity scene on public property ...say “Merry Christmas” ADF wants all Americans to know the Truth—that they have the freedom to celebrate Christmas publicly, joyfully, and without fear—for generations to come! We are launching our annual national Christmas Project™ to spread the message, “Merry Christmas. It’s okay to say it.™” Will you join with us?
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ADF works year-round to protect and preserve the right to hear and speak the Truth. To learn more about your freedom of religious expression at Christmastime,
click here.If you are directly involved in a situation that pertains to religious expression at Christmastime, please contact us using the information below so that we may determine whether the Alliance can assist you. In order to wisely steward the generous contributions of our ministry friends, we are only able to represent individual persons in matters pertaining to our primary areas of interest. We are unable to provide referrals for general legal action in such cases as divorce actions, typical child custody disputes, or other matters unrelated to ADF's key issues.
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A A AKnow Your Rights
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Frequently asked questionsResourcesNeed legal help?Media Kit (.pdf)Christmas has historically been one of the most celebrated holidays of the American people. In recent years, misconceptions and controversy about the so-called “separation of church and state” and the celebration of Christmas has led many school administrators and public officials to “remove Christ from Christmas” in places such as schools, parks, libraries, courthouse or town hall lawns, and government offices. The open celebration of Christmas is increasingly absent from the public square. This was not the intent of the Founding Fathers. In fact, the Supreme Court has never ruled that the Constitution requires government officials to censor Christmas carols or displays, eliminate all references to Christmas, or silence those who celebrate Christ’s birth. In order to eliminate any confusion with regard to your right to publicly celebrate Christmas, these
frequently asked questions and
resources will equip you with the information needed to dispel the myths and excuses that are used to silence those of us who acknowledge Christmas publicly. Please, share this information with family, friends, coworkers, and neighbors. The only way to battle the fear, intimidation, and disinformation that has been spread by the ACLU and its allies throughout our culture is to spread the Truth. We can celebrate Christmas publicly. We can acknowledge what this holiday means to us. We can…and we must.
Frequently Asked Questions
Select a question from the list below to view the answer. If you don't see the answer to your question, please
contact us directly. Note: This section provides general information, not specific legal advice. The material contained in this section does not create or imply the existence of any attorney-client relationship with the Alliance Defense Fund, Inc. or any of its attorneys or allies. It is also noted that the statements of law are based on current court decisions, which are in fact often more limited, or different, in their application and scope than the original vision of the Constitution envisioned by those who wrote it.
Schools:
May public schools have students sing religious Christmas carols?Do students have the right to distribute religious materials in public schools, such as Christmas cards containing Bible verses?Do school officials violate the Constitution by calling a school break “Christmas Vacation”?May public schools close on religious holidays, such as Christmas and Good Friday?If a public school recognizes Christmas, must it then recognize all religious holidays?Is it legal for school districts to ban the saying of “Merry Christmas”?May public schools have students study the religious origins of Christmas and read the biblical accounts of the birth of Christ?May public schools display religious symbols?Do students have a constitutional right to be exempt from activities with a religious component?Do students have a constitutional right to express their faith and religious ideas in a public school?Do students have the right to express religious viewpoints in school assignments, reading materials, and clothing?Government:
May the government sponsor religious displays inside and around governmental buildings?Do individuals have the right to private religious expression on public property?May municipalities sponsor religious displays in public parks (i.e. nativity scenes)?Do individuals have the right to express their religious beliefs with others in a public park, on a street corner, or on a sidewalk?Does the “separation of church and state” require government officials to silence someone for talking about his faith in God and his religious beliefs?Schools:
May public schools have students sing religious Christmas carols?
Yes. Religious Christmas carols may be sung in public schools without offending the Constitution. Religious Christmas carols may be sung by individual students or by a group of students during school activities such as choir, Christmas programs, and other events. Although challenges have been brought, public schools have successfully defended against constitutional challenges to the singing of Christmas carols by their students. 1
Courts often look to whether the school had a secular purpose for initiating religious expression in determining whether the school’s conduct is constitutional. For example, the Eighth Circuit Court of Appeals focused its attention on the policy and rules adopted by the board of education. The court approved the school’s stated purpose of advancing “the students’ knowledge of society’s cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama. . . .” 2 Other courts have reached similar results concerning singing religious songs in public schools. 3 These decisions are supported by prior Supreme Court rulings concerning religious expression. 4
Footnotes1See, e.g., Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311, 1319 (8th Cir. 1980).2Id. at 1314.3See Bauchman v. West High Sch., 132 F.3d 542 (10th Cir. 1998); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995).4 See, e.g., McGowan v. Maryland, 366 U.S. 420, 445 (1961) (holding that government involvement in an activity of unquestionably religious origin does not violate the Establishment Clause if its present purpose and effect are secular).
back to topDo students have the right to distribute religious materials in public schools, such as Christmas cards containing Bible verses?
Yes. The First Amendment protects the right to express ideas through the distribution of literature. 1 Because the Supreme Court has stated that the constitutional rights of students accompany them throughout the school day, students have the right to express ideas through the distribution of literature while at school. 2 Specifically, students have a right to distribute religious materials at school on the same terms as they are permitted to distribute other material. 3 The Supreme Court has noted that First Amendment rights must be “applied in light of the special characteristics of the school environment.”4 Therefore, school officials may continue “to establish reasonable time, place, and manner regulations” on the exercise of students’ free-speech rights. 5
Footnotes1Lovell v. City of Griffin, 303 U.S. 444 (1938) (holding that a city ordinance prohibiting the distribution of literature without city permission violated the rights of freedom of speech and the press).2Tinker, 393 U.S. at 506; see, e.g., Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 114 (D. Mass. 2003).3See Board of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 247–249 (1990); contra Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279 (3d Cir. 2003) (holding that the First Amendment was not violated when school prevented elementary school student from distributing candy canes with attached religious message in the classroom because school had valid educational purpose).4Tinker, 393 U.S. at 506.5Widmar, 454 U.S. at 276.
back to topDo school officials violate the Constitution by calling a school break “Christmas Vacation”?
No. School officials may refer to the school break in December as “Christmas Vacation” without offending the Constitution. The Supreme Court has acknowledged with approval that government has long recognized holidays with religious significance such as Christmas. 1 For example, Congress has proclaimed Christmas to be a legal public holiday. 2
Footnotes 1Lynch v. Donnelly, 465 U.S. 668, 676 (1984). 25 U.S.C. § 6103(a) (2005).
back to topMay public schools close on religious holidays, such as Christmas and Good Friday?
Yes. School officials do not violate the Constitution by closing on religious holidays such as Christmas and Good Friday. Although constitutional challenges have been brought against state recognition of religious holidays, a state may successfully defend its conduct by demonstrating that its actions pass the Supreme Court’s three-prong Lemon test. 1 Under the Lemon test, courts will inquire “whether the 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.” 2
In Bridenbaugh v. O’Bannon, the state of Indiana successfully defended its recognition of Good Friday as a legal holiday by asserting that its purpose was to provide state employees with a three-day spring weekend. 3 The Supreme Court explained that “the Establishment Clause does not prohibit Indiana from choosing Good Friday as the day for a legal holiday merely because that day coincides with what, to some, is a religious day.” 4
Footnotes1Bridenbaugh v. O’Bannon, 185 F. 3d 796, 802 (7th Cir. 1999). 2Lynch, 465 U.S. at 679 (citing Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971)).3Bridenbaugh, 185 F.3d at 798. 4Id. at 801.
back to topIf a public school recognizes Christmas, must it then recognize all religious holidays?
No. It is a common misconception that it is only permissible to celebrate one religious holiday if equal time is allowed for celebration of all other religious holidays. The Supreme Court has explained that governmental action is not unconstitutional merely because it confers an indirect, remote, and incidental benefit to one faith or religion, or to all religions. 1Because the Court has held that a state must have a secular purpose in recognizing a religious holiday, government recognition of a holiday that incidentally coincides with a religious holiday is not unconstitutional. 2
Footnotes1Lynch, 465 U.S. at 683. 2Bridenbaugh, 185 F.3d at 801.
back to topIs it legal for school districts to ban the saying of “Merry Christmas”?
No. School districts may not ban teachers and students from saying “Merry Christmas.” The Supreme Court has stated that teachers and students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 1 Under the direction of former President Clinton, U.S. Secretary of Education Richard Riley issued guidelines concerning religious discussion of students that stated, “Students therefore have the same right to engage in . . . religious discussion during the school day as they do to engage in other comparable activity.” 2 Teachers also have the right to greet students with the words “Merry Christmas,” in spite of their role as agents of the state. In order to violate the Establishment Clause, a teacher would have to use her authority to promote religion to impressionable youth. 3 Saying a simple greeting that people commonly use in December does not rise to an Establishment Clause violation.
Footnotes1Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (holding that the wearing of armbands by students to show disapproval of Vietnam hostilities was constitutionally protected speech).2U.S. Department of Education, Religion and Public Schools, Archived Information, Guidelines (May 1998), available at http://www.ed.gov/Speeches/08-1995/religion.html (last modified Jan. 26, 2000).3See School Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963).
back to topMay public schools have students study the religious origins of Christmas and read the biblical accounts of the birth of Christ?
Yes. The religious origins of Christmas may be studied in the classroom without offending the Constitution. The Supreme Court has stated that “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” 1 A federal appeals court has defined “the term ‘study’ to include more than mere classroom instruction; public performance may be a legitimate part of secular study.” 2 Therefore, school officials may constitutionally present Christmas passages from the Bible, such as Matthew 1:18–2:22 and Luke 2:1–20, with a variety of teaching methods.
In addition, the Supreme Court has noted, “It might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization.” 3 The Supreme Court has explained that the “study of the Bible or of religion, when presented objectively as part of a secular program of education,” is constitutional under the First Amendment. 4
Footnotes1Stone v. Graham, 449 U.S. 39, 42 (1981). 2Florey, 619 F.2d at 1316. 3Schempp, 374 U.S. at 225. 4Id.
back to topMay public schools display religious symbols?
Yes. Public school officials may display religious symbols such as a crèche or nativity scene without offending the Constitution if they have a clear educational reason for doing so. The Supreme Court has held that the display of a nativity scene is constitutional if it is displayed for legitimate secular purposes, such as to celebrate the holiday and to depict the origins of the holiday. 1 Lower federal courts have also allowed public schools to include religious and Christian symbols in Christmas displays, school calendars, and holiday programs. 2 In a recent case, a court held that the school’s holiday display and song program, which contained religious symbols, books, and songs, did not violate the Establishment Clause. 3 The court noted that the display “sends a message of inclusion and celebrates freedom to choose one’s own beliefs.” 4
Footnotes1Lynch, 465 U.S. at 681. 2See, e.g., Sechler v. State College Area Sch. Dist., 121 F. Supp. 2d 439 (M.D. Pa. 2000); Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993).3Sechler, 121 F. Supp. 2d at 453.4Id.
back to topDo students have a constitutional right to be exempt from activities with a religious component?
Yes. All students have a constitutional right to opt out of activities, such as a Christmas program or a concert with a religious song, that conflict with the individual beliefs of the students or their parents. 1 When the religious activity does not violate the Establishment Clause, as explained above, the school is not required to prohibit the activity even though it creates conflict with some students. 2 However, the school may not force “any person to participate in an activity that offends his religious or nonreligious beliefs.”3 If a student has an objection to some school activity containing religion (e.g., a school concert containing a religious song or a field trip to a museum containing religious art), this does not empower the student to censor the expression or block the activity. The Constitution permits the student to opt out of participation, but not to silence others.
Footnotes1See Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that parents and guardians have a constitutional right to direct the upbringing and education of their children). 2Florey, 619 F.2d at 1318. 3Id.
back to topDo students have a constitutional right to express their faith and religious ideas in a public school?
Yes. The private religious speech of students is protected under the First Amendment. 1 Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 2 The Supreme Court has stated that a student’s free-speech rights apply “when [they are] in the cafeteria, or on the playing field, or on the campus during the authorized hours. . . .” 3 The Supreme Court has warned school officials not to trample the rights of students in public schools, stating:
State-operated schools may not be enclaves for totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligation to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. 4
Footnotes1Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a university that has opened its facilities for use by student groups cannot exclude groups because of the religious content of their speech). 2Tinker, 393 U.S. at 506. 3Id. at 512–513.4Id. at 511.
back to topDo students have the right to express religious viewpoints in school assignments, reading materials, and clothing?
Yes. The Supreme Court has held that the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” 1 As noted previously, First Amendment rights, such as the rights of freedom of speech and expression, accompany each student throughout the school day both inside and outside the classroom. 2 Consequently, school officials must permit students to convey religious sentiments through their school assignments, 3 selection of reading materials, and clothing that conveys a religious message through words or symbols.
Footnotes1Lynch, 465 U.S. at 673. 2Tinker, 393 U.S. at 512–513.3Compare Tinker, 393 U.S. at 512–513, with Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns).
back to topGovernment:
May the government sponsor religious displays inside and around governmental buildings?
Yes. The Supreme Court has noted that there are countless illustrations of the “Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage.” 1 For example, the Court pointed out that the Supreme Court chamber “is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.” 2
In spite of our heritage of governmental religious expression, federal courts across the country are currently grappling with cases concerning the constitutionality of governmental exhibition of religious displays inside and around governmental buildings. Even though courts have relied on similar factors in analyzing these cases, courts have inconsistently decided factually similar cases. 3
The Supreme Court recently reaffirmed that
[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups ... .[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. 4
In Van Orden v. Perry, the Supreme Court found that a display of the Ten Commandments on the grounds of the Texas state capitol did not violate the Establishment Clause of the First Amendment because the display was part of the political and legal history of the state. 5 However, in a sister case, McCreary County v. A.C.L.U., 6 the Supreme Court found that a county’s display of the Ten Commandments was unconstitutional because the county did not have a secular purpose in erecting the display. The county intended to celebrate the religious significance of the Ten Commandments, which when “viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.” 7
Van Orden and McCreary have added little clarity to the constitutionality of government’s sponsoring religious displays on public property. Nevertheless, as discussed previously, courts look to the Supreme Court’s three-prong Lemon test and the endorsement test to determine whether there has been an impermissible establishment of religion. An additional factor that courts may consider is whether the government’s religious display is permanent or temporary. In the public school context, courts tend to favor temporary displays rather than permanent displays. In Stone v. Graham, the Supreme Court held that a state law requiring the permanent posting of the Ten Commandments in public school classrooms was unconstitutional. 8 The Stone court noted, “This is not a case in which the Ten Commandments are integrated into the school curriculum.” 9 Relying on Stone, a lower federal court held that “a school’s permanent display of religious symbols is constitutionally suspect.” 10
However, in the context of religious displays in other governmental buildings, the length of time the symbol has been in use or the length of time the display has been exhibited often weighs in favor of the government. In King v. Richmond County, Georgia, the Eleventh Circuit Court noted that the clerk’s seal, which included an outline of stone tablets, had been in use for at least 130 years. 11 The court noted that this fact arguably supported the county under the effect prong of the Lemon test. 12 Relying on the King decision, the Third Circuit Court held in another case that the age and history of a Ten Commandments plaque, which was displayed by itself, “provide[d] a context which changes the effect of an otherwise religious plaque.” 13 In reaching its decision, the Third Circuit Court looked to the Supreme Court decision in County of Allegheny v. ACLU, in which Justice O’Connor in her concurrence stated:
The “history and ubiquity” of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion. 14
Although the Lemon test, the endorsement test, and time-based factors provide a measure of guidance for lower courts, the abundance of inconsistent decisions reached by lower courts indicates that these tests have not always provided clear answers to the constitutional questions secular groups are raising in response to governmental exhibition of religious displays inside and around governmental buildings. However, the Alliance Defense Fund and its allies stand ready and willing to defend the right to display religious messages on public property.
Footnotes1Lynch, 465 U.S. at 677.2Id.3See e.g., King v. Richmond County, 331 F.3d 1271 (11th Cir. 2003); Adland, 307 F.3d 471; Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002); Ind. Civil Liberties Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001); DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999).4Van Orden v. Perry, 125 S.Ct. 2854, 2859 (2005). 5Id. at 2864. 6125 S.Ct. 2722 (2005). 7Id. at 2739. 8449 U.S. 39, 41 (1981). 9Id. at 42.10Clever, 838 F. Supp. at 929, 937.11331 F.3d 1271, 1286 (11th Cir. 2003). 12Id. 13Freethought Soc’y of Greater Phila., 334 F.3d at 264.14Id. (citing County of Allegheny v. A.C.L.U., 492 U.S. 573, 630 (1989)).
back to topDo individuals have the right to private religious expression on public property?
Yes. The First Amendment protects the right of individuals to private religious expression on public property. In analyzing free-speech cases involving religious speech or expression, the result of the case will probably depend on the nature of the forum. The Supreme Court has recognized the following speech forums: 1) traditional public forum, 2) limited or designated public forum, and 3) nonpublic forum. 1 The forum that is at issue in the case determines the degree of deference that courts will extend to the governmental entity’s regulation of speech. Speech receives the most protection in a traditional public forum and the least in a nonpublic forum.
Footnotes1Board of Airport Comm’ns v. Jews for Jesus, 482 U.S. 569, 572 (1987).
back to topMay municipalities sponsor religious displays in public parks (i.e. nativity scenes)?
Yes. Public officials may display religious symbols such as a crèche or nativity scene without offending the Constitution. To determine the constitutionality of municipal religious displays, lower courts evaluate whether the religious display passes the Supreme Court’s three-prong Lemon test. 1 Under the Lemon test, courts will inquire “whether the 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.” 2 In addition to the Lemon test, courts often look to the endorsement test, which asks whether a reasonable observer would believe that the municipal display constitutes an endorsement of religion by the government. 3
Employing the Lemon test, the Supreme Court has held that the display of a nativity scene is constitutional if it is displayed for legitimate secular purposes, such as to celebrate the holiday and to depict the origins of the holiday. 4 While the majority opinion in Lynch centered on the Lemon test, Justice O’Connor’s concurrence in Lynch has served as the standard for municipal seasonal displays. 5 It was her concurrence as the swing vote in the Lynch decision that created what has been known euphemistically as “The Three Reindeer Rule.” The legal name for the test is the “endorsement” test because Justice O’Connor stated that she believed the “central issue” in the Lynch case was whether the city “endorsed Christianity by its display of the crèche.” 6 Answering the question in the negative, Justice O’Connor found the contextual setting of the crèche amongst the other secular objects to be sufficiently secular to pass constitutional muster. 7
The endorsement test has been cited in many other cases and has gained a wide degree of acceptance as the determining factor for municipal religious displays. 8 Thus, a crucial consideration for municipal seasonal displays is the secular context in which the crèche is placed. Simply stated, “The Three Reindeer Rule” requires a municipality to place a sufficient number of secular objects in close enough proximity to the crèche to render the overall display sufficiently secular.
The Lemon test and the endorsement test have proven to be burdensome restrictions on governmental authorities who seek to exhibit religious displays. The government can avoid the requirement that a religious display include a sufficient number of secular figures if private individuals, who are not subject to religious speech restrictions, initiate the religious display. 9
Footnotes1Bridenbaugh, 185 F.3d at 802. 2Lynch, 465 U.S. at 679 (citing Lemon, 403 U.S. at 612–613). 3See Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002). 4Lynch, 465 U.S. at 681. 5See, e.g., Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 262 (3d Cir. 2003). 6Lynch, 465 U.S. at 690. 7Id. at 691.8See, e.g., Adland, 307 F.3d 471; Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997); Mather v. Village of Mundelein, 864 F.2d 1291 (2d Cir. 1989). 9See Mergens, 496 U.S. at 250.
back to topDo individuals have the right to express their religious beliefs with others in a public park, on a street corner, or on a sidewalk?
Yes. Streets, sidewalks, and public parks are traditional public fora, and private religious speech in those places is constitutionally protected. 1 In fact, the Supreme Court has held that the government may not prohibit all communicative activity within a traditional public forum. 2 The Supreme Court has noted that “from ancient times” the use of public places such as parks has “been a part of the privileges, immunities, rights, and liberties of citizens.” 3 Public parks are held in trust for the use of the public “for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” 4
As a result, private religious expression within public parks is constitutionally protected speech. 5 In Doe v. Small, the Seventh Circuit Court of Appeals held that the First Amendment protected the religious speech rights of private parties who sought to display paintings of Christ in a public park. 6 The court held that “the mere presence of religious symbols in a public forum does not violate the Establishment Clause, since the government is not presumed to endorse every speaker that it fails to censor in a quintessential public forum far removed from the seat of government.” 7 As a concurring opinion further explained:
Government may not discriminate against private speech in a public forum on account of the speaker’s views. The Free Exercise Clause assures speakers whose message is religious no less access to public forums than that afforded speakers whose message is secular or sacrilegious. 8
“For the state to enforce a content-based exclusion it must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” 9 Therefore, in a traditional public forum, individuals have the right to private religious expression.
Footnotes1Hague v. C.I.O., 307 U.S. 496, 515-16 (1939). 2Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).3Id.4Hague, 307 U.S. at 515–516. 5964 F.2d 611, 618 (7th Cir. 1992) (en banc). 6Id.7Id. at 619. 8Id. at 629 (Easterbrook, J., concurring) (citations omitted).9Perry Educ. Ass’n, 460 U.S. at 45.
back to topDoes the “separation of church and state” require government officials to silence someone for talking about his faith in God and his religious beliefs?
No. To the contrary, it is well-established that the Constitution protects the religious speech of private individuals under the First Amendment. 1 Therefore, the Constitution prohibits governmental entities from suppressing or excluding the speech of private individuals solely because their speech is religious or contains a religious perspective. 2
Footnotes1See, e.g., Heffron v. Int’l Soc’y for Krishna Consciousness Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948).2Id.
back to topI'M ASKING ALL AMERICANS TO BOYCOT ANY STORE OR MEDIA OUTLET THAT DOES NOT PROMOTE OR SAY MERRY CHRISTMAS
THANKS FOR YOUR HELP
NO GAMES,
JOSHUA ROBINSON
