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.

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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."

Haynes said court holiday rulings suggest guidelines for Ten Commandments displays. "I think that the Ten Commandments movement has read these decisions very carefully. One strategy that's being tried in a number of places is to do it in the context of a historical display. That is, I think, clearly modeled on the Supreme Court decisions on holiday display cases."

While a Christmas display may be controversial, the ACLJ's May says, when done properly, either by a municipality or privately, courts will uphold such displays. Similarly, the ACLJ is winning the vast majority of Ten Commandments cases it has handled, said May.

The cases are related in another way according to the May. "We have actually seen a slight up tick in the number of inquiries we receive on the propriety of how to do it. We believe this is driven by the exposure that the Ten Commandments posting and monuments issue has created." The ACLJ has posted information on its website and sends letters to those who ask about the constitutionality of religious holiday displays.

The next battleground

The ACLJ has also received many inquiries from school choir directors and teachers responsible for Christmas concerts. May said, "When they look to the repertoire of the music of the season, the 95 plus percent of it is all religious in history. And they ask 'can we do that?' And the answer is 'of course certainly you can do that.' " Though the ACLJ has dealt with religious expression cases in schools, May said he has not seen an increase in antagonism.

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However, Whitehead believes schools are the next battleground. He said last year they were besieged with cases where students were forbidden from saying "merry Christmas" or even wearing red or green. Whitehead expected to receive more this year when schools began performing Christmas concerts, and by Thanksgiving, they were dealing with a similar situation.

"A kid was asked to paint something that reminded him of Thanksgiving, something that he was thankful for, and he drew God on a cloud," Whitehead said. "And the teacher wadded it up and said you can't do that, it's illegal here." He said school cases are more difficult to argue because schools often have dress policies to prevent gang activity, and often students and teachers are not willing to stand up and fight to wear a cross or say "Merry Christmas."

Defending Christmas

As part of their Christmas Project Initiative, the Alliance Defense Fund has organized 700 attorneys who are willing to fight religious censorship in public schools. Barry Arrington, an ADF allied attorney, is representing a school in Elbert County Colorado that recently received a letter from the American Civil Liberties Union and the Anti-Defamation League asking the school to remove any reference to Christmas, including secular ones. The ACLU and the ADF represented parents who didn't want their child exposed to Christmas references.

"The school is faced with a decision at this point to fight for its rights and the rights of the students and the parents and the teachers, or just make the whole thing go away by caving in. Usually the cheapest thing to do is cave in." Arrington said. "That's always been the ACLU's big ace-in-the-hole. Even if they're wrong, and they're wrong in this case, in order to vindicate that right, they must take someone to court, and money has to be spent on attorneys."

Currently, the ADF is dealing with 25 similar situations in schools around the country, and Arrington believes there are many more unreported cases. Jordan Lorence, senior counsel at ADF said, "The ACLU uses fear and intimidation and disinformation to get school districts and other government entities to censor Christmas in ways no court has required." Lorence said the ACLU typically will send a letter to a school saying a certain activity is unconstitutional, and often, the school complies with the letter to avoid a lawsuit. "People need to know the truth that the censorship of Christmas is not required by the constitution," Lorence said. "I find it maddeningly frustrating, that the ACLU writes these letters." According to Lorence, the Colorado appeals court has already ruled in a situation similar to the one at Elbert County Charter School. The ACLU lost that case in which a student objected to singing a religious Christmas carol, and though the student could opt out of the program, the ACLU asked the school not to sing the song. Lorence said the 10th circuit unanimously rejected the ACLU's position, yet the ACLU wrote a letter to Elbert Charter School saying the law forbids references to Christmas. Lorence said. "The Establishment Clause is not a weapon to be wielded to censor others."

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Authentic displays

Whether it's singing Christmas carols in school, or posting the Ten Commandments in a courtroom, media attention tends to distort the real issue, said Hayes. "It's confused with whether or not religion is being kicked out of the public square, and it's a deeper question than that. This is an old theme in American history." Haynes said there is an anxiety particularly among evangelicals that the nation has fallen away from acknowledging its dependence on God. In response, there is an attempt to restore official acknowledgment.

"To me one of the lessons there to people of faith is that pushing the government to put up religious displays does not end well for religion. It often ends in trivializing religion, or worse yet, making the crèche a secular symbol," said Haynes. "It's better for private citizens to put up nativity scenes and the Ten Commandments, thereby they can do it in a way that's authentic."

Related Elsewhere

Last year, CT did a roundup of the "December dilemma."

See more articles on Christmas from Christianity Today and sister publications.