Here at Christmas, and in parallel celebrations of light and joy, we are reminded of how lucky we are, we Americans, with our freedom of religion.
So often, too often, we take counsel of our fears. If any time of year yearns for us to put aside fear, it is this one. Here at Christmas, and in parallel celebrations of light and joy, we are reminded of how lucky we are, we Americans, with our freedom of religion.
Yet, perhaps predictably, those who neither understand nor wish to understand, who traffic in conceit, defeat, fear, and intimidation, who somehow miss the point, often seek to sow doubt. Many times, a town or civic group backs away from controversy, omitting a Christmas creche. They need not.
The law is clear. While room exists to challenge exclusion, the right to celebrate our nation’s Christian roots, to lift hearts and eyes to civic virtue, to erect a loving creche, and if the public so wishes other symbols on public land, is as true as ever it was. To imagine otherwise is to misread the law.
In short, while the First Amendment forbids the “establishment” of one religion by government, and we should be glad it does, the right is a two-sided coin, also assuring free exercise of our faiths.
That is because we are a nation of faithful people, more than 200 million American Christians, by some estimates 70 percent of the population, more than six million Jewish, four million Buddhist, more than three million Muslim. We are guided by God and make no apologies for that.
The truth is, our nation was founded by Christians, who plainly recognized civic virtue was required for a working Republic and was tied to honoring, preserving, and celebrating faith – that our nation’s future depended on both a moral majority and respect for what brought them to their values, their faith.
But let’s get specific. If Supreme Court opinions assure no official religion, no theocracy, no official favoring of one faith, no denial of conscience, not promoting one faith, we will not be denied our celebration of faith, either.
Thus, two major Supreme Court decisions govern Nativity scenes, so historically popular in the United States, public and private, large and small, in school plays, Charlie Brown specials, and municipal venues, indoors and out. These cases focus on government property but are permissive, not restrictive.
Notably, these two cases have stood – unchanged – for decades. In 1984, the High Court ruled in Lynch v. Donnelly that a Rhode Island nativity scene, part of a wider display that featured Santa, reindeer, and other festive elements – did not violate the Establishment Clause.
The Court ruled that the display was not coercive, exclusive, or otherwise an “establishment,” but rather served to “celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday,” straight forward, historical, logical – also serving “legitimate secular purposes.”
Four years later, the High Court again opined on a Nativity scene, refining the celebration right, but only to prevent omission of rights sought to be exercised by others.
Thus, in Allegheny v. ACLU, the Supreme Court reviewed two displays – one prominent in a Courthouse, one outside. The Court noted the indoor display was hard to avoid, omitted other elements, pressed an overtly religious message, “Gloria in Excelsis Deo.” While some differed, this they found violated “establishment.”
The other one, set up outdoors, presented no “establishment” issues, as it was broad, with other elements of celebration nearby, including a Christmas tree, for that diverse community a menorah, reference to freedom and liberty.
The Court noted it was “conveying the city’s secular recognition of different traditions …” In other words, yes, Christianity is a historical tradition, centered on the birth of Christ, and other traditions are equally valid under our Constitution.
So, where are we today? If we do not unduly or prejudicially exclude, aim to establish, coerce, or promote one religion over another, do not overstep, the Nativity scene is fine.
Courts generally respect the origins, community, history, and intent while evaluating what kind of displays show up on public (versus private) property, whether inside or out, other elements included, written words attached, or broadly inclusive.
If Christmas is religious, by definition, it can and must also be understood as part of a secular, historic, and in this country uniquely important part of our national tradition, in effect part of our past, and so part of our present and future.
While the Supreme Court could always change their minds, which would cause a stir in a national two-thirds Christian, chances are they will not any time soon. With that, as you celebrate this time of year, have no fear. And from this quarter, Merry Christmas!