Focus on the Family

Do You See What I See?

by Bruce Hausknecht, Esq.

John 3:16

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 Court to 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.

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.

'Tis The Season...' To Get To Know a Court Case

The religious clause of the First Amendment is often misinterpreted by secular and liberal activists in their quest to remove all Christian references from the public square. Nevertheless, one federal court case continues to thwart these efforts.

by Bruce Hausknecht, Esq.

04 22 09

Lynch v. Donnelly.  Not what typically comes to mind when you think of Christmas; however, it's an important U.S. Supreme Court case that impacts every American who values their religious freedom.

Lynch v. Donnelly centered around an annual Christmas display by the city of Pawtucket, R.I., and explored and set out the current boundaries of the First Amendment’s "Establishment Clause," which says, in part,

"Congress shall make no law respecting an establishment of religion. …"

Liberal and atheist groups often incorrectly equate the Establishment Clause with the term “the separation of church and state,” as it relates to any government display of religious symbols at Christmas.

At the time of the Lynch v. Donnelly lawsuit, the city of Pawtucket had for 40 years owned and displayed in a park the following items at Christmas: a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures of clowns, an elephant and teddy bear, hundreds of colored lights, a large banner that read, "Seasons Greetings," and a crèche (Nativity scene). In the early 1980’s, several secular groups brought a federal lawsuit challenging the constitutionality of the city’s inclusion of the Nativity scene, alleging it amounted to a government endorsement of religion; thus, violating the First Amendment’s Establishment Clause.

The city lost the preliminary legal rounds in the lower federal courts. The U.S. Supreme Court, however, reversed the lower courts and decided in favor of the city and its crèche. Supreme Court decisions since the 1940s had been increasingly hostile toward government religious involvement of any kind, so this decision was something of a welcome departure from that trend.

For Christians who are used to hearing that the "separation of church and state" means religious expression in the public square is prohibited, it’s useful to know the Court’s decision debunks most of the arguments we usually hear. Here’s what its opinion said, as it began its analysis:

"The Court has sometimes described the Religion Clauses [of the First Amendment] as erecting a ‘wall’ between church and state. … The concept of a ‘wall’ of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state."

The Court further explained that the Establishment Clause does not require complete separation of church and state. In fact, it stated the clause requires accommodation, not merely tolerance, of all religions, and forbids hostility toward any. So how did that reasoning play out for the Nativity scene?

Going back to Pawtucket’s display, the Court rejected the lower courts’ reasoning that the mere inclusion of the Nativity scene served as an "endorsement" of religion, and looked at whether there was an overriding secular purpose for the city’s inclusion of the scene. It found one:

"The display is sponsored by the city to celebrate the holiday and to depict the origins of that holiday. These are legitimate secular purposes."

If you find the phrase "legitimate secular purposes" a little vague, you are not alone. The Supreme Court has had a difficult time, frankly, in coming up with more specific tests in these situations, because each case turns on the particular set of facts at issue: a Nativity scene may be fine in one setting like the Pawtucket display, but wouldn’t be acceptable in another situation. But, to the extent a local government entity wants its Christmas display to pass a constitutional challenge it should always have a secular purpose for including a religious symbol, as the city of Pawtucket did.

Christians might object to hearing a Nativity scene is only acceptable in the public square when accompanied by Santa Claus and reindeer. And, rightly so. If our Founders were alive, they, too, might scratch their heads in bewilderment at some of the court rulings we’ve seen over the years when interpreting the religion clauses of the First Amendment. Nevertheless, it is useful for Christians to understand the current First Amendment landscape, and Lynch v. Donnelly is a key part of it.

Separation of Church and State?

The phrase “separation of church and state” has unfairly become shorthand for, and distorted the meaning of, the First Amendment’s Establishment Clause.

by Bruce Hausknecht, Esq.

The First Amendment of the U.S. Constitution begins with "Congress shall make no law respecting an establishment of religion," a phrase commonly referred to as the Establishment Clause. In the 1947 U.S. Supreme Court decision Everson vs. Board of Education1, the Court explained the Establishment Clause as a "wall of separation between church and state."

But where did the phrase — "wall of separation between church and state" — really come from? What did it originally mean? Is it the proper way to interpret the Establishment Clause? Or, is it, as former Chief Justice William Rehnquist asserted, a "metaphor based on bad history," which should be rejected as an interpretive aid for the Establishment Clause?

'Separation of Church and State' Absent From the Constitution

The U.S. Constitution was drafted in 1787. The Bill of Rights followed in 1789, following the Constitution's ratificationduring the first Congress . Thomas Jefferson, the author of the "wall" metaphor, was in France during this period acting as our ambassador, and he didn't participate in the drafting or debate of either document. Neither document contains the phrase "wall of separation between church and state."

Jefferson's Letter to the Danbury Baptists

The phrase was first used in January 1802, in a private letter to the Danbury Baptist Association in Connecticut by newly elected President Jefferson. The Danbury Baptists had written a congratulatory letter to Jefferson following his election victory and used the letter as an opportunity to solicit Jefferson's views on state interference with the exercise of religion and freedom of conscience. The Baptists were chafing under Connecticut's restrictions on their religious exercise (Congregationalism was then the "established" church in Connecticut; meaning, it was protected and promoted by the state with tax funds), and hoped for a presidential response that might be useful in shaping public opinion on their behalf.2

Whether he was taking the opportunity to address election campaign charges that he was an "infidel" and "atheist,"3 or to articulate his views on religion and government, and in particular his opposition to government proclamations of fast days and thanksgiving days4, Jefferson offered only indirect support for the Baptists' sensitivities. His letter focused not on the Baptists' specific situation, but rather on the language of the First Amendment and his views of the federal government's role regarding the free exercise of religion:

"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State."5 (emphasis added)

This latter phrase became the centerpiece of the U.S. Supreme Court's 1947 Everson v. Board of Education of Ewing Tp. opinion, a case about public funding of religious school busing.

1 Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947).

2 Philip Hamburger, Separation of Church and State, (Cambridge, Massachusetts: Harvard University Press, 2002), p. 157.

3 Daniel L. Dreisbach, "Origins and Dangers of the 'Wall of Separation' Between Church and State," Imprimus, 35 (2006): p.2.

4 Hamburger, p. 159.

5 "Jefferson's Letter to the Danbury Baptists," Library of Congress Information Bulletin, 57, no.6 (June 1998), (8 May 2008).

"Thriving Values" Video Series

How Can 'Separation of Church and State' Affect You?

In this video edition of "Thriving Values," Bruce Hausknecht, judicial analyst for Focus on the Family, discusses why Christians should care about the misconception — and misapplication — of the phrase "separation of church and state."

  Bruce Hausknecht