Every year, as we approach Christmas, we hear of a new legal conflict over the display of Nativity scenes on local government property. Or we read about individuals who are forbidden from expressing religious sentiments at work. in school or in public places. Secular organizations annually send threatening letters to cities, towns and schools claiming - albeit inaccurately - any recognition of the religious nature of the holiday violates the "separation of church and state." The false narrative has proliferated to the point many Christians are frightened into silence at Christmastime, thereby missing an important opportunity to present the Gospel message, which the world needs to hear. However, this annual obstruction does not have to continue. If public officials and concerned citizens become versed ina few, very basic facts about the U.S. Constitution and how it affects religious expression in the public square, confusion over public Christmas expressions of various kinds can be averted.
Back to Basics
The First Amendment has a clause dealing with religion, which has formed the basis for most of the Christmas conflicts: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" The first part of that clause - called the "Establishment Clause" - has been interpreted by the U. S. Supreme Courtto prohibit the government from either endorsing religion or - and this is important - exhibiting hostility toward religion. Government can and should "accommodate" religious expression in the public square just like it does toward any other type of expressive activity.
To understand how this plays out in practice, we must look at Christmas expression in several arenas: government expression in its governing role; government-created space for individuals or groups to speak; and the peculiar situation of employee rights of expression in the workplace.
- Government Displays of Christmas Expression. The Supreme Court concluded that a city can include nativity scenes or other "religious" seasonal messages on public property where doing so has a "secular purpose." That may sound contradictory but it’s really not. A secular purpose, for example, can be celebrating all of the aspects of Christmas, which includes the secular as well as the religious aspects. Thus, a public square decorated with a Santa Claus, reindeer, lights, trees and other non-religious expressions of the season can also include a traditional nativity scene. However, in another case where a local government displayed only a nativity scene, it couldn’t meet the "secular purpose" test.
- Government-Created Space for Individual Expression. In addition to the Establishment Clause’s role in government expressions of Christmas, the First Amendment’s "free speech" clause also comes into play where individuals’ Christmas expression in the public square is concerned. If a town or city allows the public to decorate an area of government property for the Christmas season, for example, they cannot discriminate against a religious expression of Christmas and favor only secular forms. To say it another way: if your city council allows the public to decorate the city park for Christmas, they can’t allow snowmen and reindeer, yet prohibit nativity scenes.The same holds true of speech, or singing. If the government allows barbershop quartets or other entertainers into public areas, it cannot prohibit Christmas carolers. Nor can the government permit "Rudolf the Red-nosed Reindeer," but prohibit "O Come, O Come, Emmanuel." Religious expression, constitutionally speaking, gets the same level playing field in the public square as other types of expression. Schools have been a ripe area for Christmas confusion, and have a few more constitutional tripwires than the public square, so we’ve looked at that particular subject separately.
- Employee Christmas Expression. At Christmastime (and other religious holidays), private employers can decide for their companies what they will or won’t allow in the workplace, because the First Amendment’s restrictions are directed not at private business, but at government. Government employers, however, are bound by the Establishment Clause’s prohibition of hostility toward religion, so if they permit some types of secular Christmas expression in the workplace, but not religious expression, they’ve probably crossed a First Amendment line. They’re also free to prohibit all Christmas expression, because it treats all types of expression alike and doesn’t disfavor religion.
To sum up, the best way to think of Christmas in the public square is to think of it as a "fair and level" playing field for all types of seasonal expression, where religious expression enjoys the same rights as secular expressions. Government entities should carefully observe the constitutional requirements before including religious elements in their seasonal displays; however, there's plenty of legal room for them to participate as well.