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In Connecticut, a library is refusing to display paintings of Jesus' nativity and resurrection as part of its rotating display of local art. In Queens, New York, a woman is suing a school because it would not allow her child's nativity scene to be part of its holiday display, though it allowed a menorah and an Islamic crescent. The Indiana University School of Law caused a ruckus when it removed a Christmas tree and replaced it with a generic winter scene. Outside Detroit, the city of Troy has decided to forbid private citizens from placing Christmas displays on city property. Around the United States, it's the annual "December dilemma": how do you celebrate a religious holiday without being sued?

In Fort Lauderdale, Florida, Calvary Chapel wanted to participate in a two-mile long Holiday Fantasy of Lights and submitted a design that read, "Jesus is the Reason for the Season." When the county rejected it, Calvary sued. John Whitehead, president of the Rutherford Institute, who represented the church, said, "We argued that the festival had all these other displays, and they were discriminating against the Christian symbol. Just a couple years ago in a case that we argued and won, the court said that's illegal. Once you open a forum, you cannot have religious viewpoint discrimination." In late November, a judge ruled in favor of Calvary Chapel saying the county could not prohibit Calvary Chapel's message if it allowed others.

The plastic reindeer test

Though similar instances still abound, Charles Haynes, senior scholar at the First Amendment Center, said there is little dispute over the law. "If the government is involved in putting up a religious display, the courts are likely to see that as unconstitutional," Haynes said. "However, if a government body decides to put up a display that includes a religious message or symbol but is overall a more general message, either a historical or a holiday message, that's likely to be upheld as constitutional."

Such guidelines can put municipalities in an awkward position because there is no clear line between the religious display of a crèche, and the seasonal display of Christmas trees, Santa Clause, reindeer, and candy canes. "It's laughingly sometimes called the plastic reindeer test," Haynes said. "How many reindeer do you need to make Jesus secular?" Colby May, senior counsel and director of the Washington office of the American Center for Law and Justice, said, "I know that sounds a little goofy, but the truth is all these cases really are in the details." The test is whether a reasonable observer would find a Christmas display religious. If so, it's unconstitutional.

Whitehead noted two Supreme Court cases that helped define regulations on public nativity displays. In one, the Supreme Court ruled that a nativity scene on the grand staircase of the Allegheny County courthouse in Pittsburgh was unconstitutional because standing alone it endorsed Christianity. In the Lynch v. Donnelly case "there was a nativity scene in a park and the court ruled that it was constitutional because there was Santa Claus and the reindeer, things that diminish the religious significance of it. They ruled that it had a secular purpose."

Similar to the Ten Commandments

Haynes said there are similarities between Christmas display cases and Ten Commandments cases. "If it's constitutional to have a city put up a holiday display that might have a nativity scene, a menorah, and maybe Santa Claus, and if the overall impression is that this is just a celebration of the season, then it's possible the Court would say that a display about the historical roots of our laws that includes the Ten Commandments would also be constitutional."

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December (Web-only) 2003, Vol. 47