Christmas Creches and the Constitution

The holiday season is upon us and many Americans gather together in celebration of Christmas and Hanukkah. It is among the happiest times of year and its commonplace to travel around neighborhoods and find lights and decorations of the holiday spirit. Some families have an inflatable Santa Claus and reindeer on their lawns while others have nativity scenes or menorahs to celebrate the season. The excitement of this time of the year has been a staple of the American culture since its founding and even before when several pockets of faith-driven people emigrated to this land for religious freedom. Once the nation was founded the religious influence continued in the formation of the Constitution. The First Amendment contains protections for religious interests with the Free Exercise clause and protection from a state-run domineering religion like the Church of England in the Establishment Clause.

This post will assess the Supreme Court weighing in on holiday symbolism most specifically in the case, Lynch v. Donnelly[1].

In Lynch, suit was brought because of the display of a Christmas creche by the city in a park coupled with other Christmas decorations such a Santa Claus house and a Christmas tree.  For 40 years the creche scene was part of the display during the Christmas season.  The Supreme Court found in favor of the city on various grounds.

Here, we will focus on aspects of the majority opinion of Chief Justice Warren Burger and the concurrence offered by Justice Sandra Day O’Connor. Justice Burger’s opinion provides sound legal reasoning as to why the creche should not constitute a violation of the Establishment Clause. However, the concurrence offered by Justice O’Connor provides an interpretation that seems to constitute an expansive understanding of Establishment Clause violations.

Chief Justice Burger’s opinion recognizes prior legal commentary on the wall of separation of church and state as not persuasive when considering the facts provided here. He cites examples rooted in the history of our nation that show a government relationship with faith such as legislative prayer with ministers, Executive proclamations as to Christmas being a national holiday and the proclamation of a National Day of Prayer. These are all examples he offered about the nation displaying its religious heritage and how it cannot be broken.[2]

A complete separation is impractical; however, he does concede that if the display was made for a wholly religious purpose without a secular purpose considered it would run into Constitutional problems. The display of the creche being provided during the holiday season with the other decorations provides a heterogeneous nature to the purpose, but is not entirely excluding the religious influence.[3]

Justice O’Connor’s concurrence expands on the definition of the Establishment Clause as applied to the facts of this case.

She states:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines.  The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”[4]

Her first point of analysis is fair in that it would not be healthy for society to have excessive government entanglement with religious institutions like the Church of England did and reach a controlling point where the government is influencing the appointment of ordained religious or influencing services.

However, her second point is debatable. Government endorsement or disapproval of religion is a very subjective standard and even taken to its fullest interpretation in which the government offers religious symbolism, it is difficult to see an issue if multiple religions are so called “endorsed”. The government is composed of the American people, if citizens submit requests for the government to recognize a major faith celebration through the placement of holiday symbols on government property for the holidays, there should not be a concern unless a recognized religion was denied an opportunity that was provided for other faiths. Many faiths can be so called “endorsed” because it is simply reflecting the views that are a part of their local citizenry. The origins of this nation have historically carved out faith interests that should continue to be respected in the modern day.

Furthermore, this interpretation she offered can be unsettling. She makes a leap that assumes that a form of government support for religion leads to the creation of outsider label for those that do not believe in religion. This is not persuasive for a variety of reasons. In essence, she is saying that a Christian will be considered a favored member of the community over an atheist because they celebrate a holiday such as Christmas that is national recognized and would like to offer symbolism to celebrate the season in the local community.

Would Justice O’Connor then consider taking away Christmas as a national holiday because atheists do not believe in it? Is making Christmas a national holiday creating an outsider label to atheists? How far is she willing to expand this reasoning? It is undeniable that the origins of Christmas have a faith-based nature. Those that do not believe in Christmas or Hanukkah and do not find themselves practicing religion made that decision on their own for personal reasons. It was not the government reflecting the beliefs of other members of the community that pushed them to a so-called “outsider” label.

The government’s role is not to make decisions for an individual on what they choose or not choose to celebrate on an individual basis. Allowing symbols of those that celebrate religious holidays is not interfering with the personal decision-making capacity of an individual.

However, even if we concede and sympathize with Justice O’Connor’s reasoning, there fails to be adequate evidence of a diminished position in the political community because of one’s non-belief.  For example, the right to vote which is a political community benefit is not taken away from atheists because of their choice to not follow a faith tradition

Her strongest counter would likely be churches and property tax exemptions where religious organizations are offered certain tax benefits by declaring their religious status. However, the entity as a whole is being allotted that benefit not the parishioners on their own personal property tax bill. On a broader scale perhaps, this can be considered a “favoritism” of sorts towards faith institutions, but on an individual scale both the parishioner and non-believer are required to pay their fair share in taxes. The individual’s attendance or non-attendance in a faith community does not alter their level of political participation in the community.

Overall, Lynch provided some interesting commentary from the Supreme Court on how holiday religious symbolism should be viewed. It raised some points about the bounds of Separation and the proper role of the Establishment Clause. Chief Justice Burger offered foundational principles of the religious heritage of the nation and how to interpret its impact in the modern day while Justice O’Connor provided an expanded perspective that draws valid questions of debate.


[1] 465 U.S. 668 (1984).

[2] Id. at 674-77.

[3] Id. at 686.

[4] Id. at 688.

Justice Sotomayor and her troubling Trinity Lutheran Dissent

Supreme Court Justice Sonia Sotomayor is widely regarded in circles as the Supreme Court Justice that only rivals Ruth Bader Ginsburg in her consistent adherence to liberal  principles on the bench. Last post we discussed swing-vote Justice Anthony Kennedy and his history in regards to cases with religious freedom.  Here, we will dissect  some points in Sotomayor’s dissent in Trinity Lutheran, a recent religious freedom case, and the danger it poses to interpretation of religious freedom and the role of religion in jurisprudence.

The Supreme Court assessed in Trinity Lutheran if a private Missouri faith-based school was entitled to receive state funding through grants to provide safety playground tire on its playground.  The Court ultimately found in a 7-2 vote that the failure to provide state funding to the faith-based school like the non-religious private schools violated the Free Exercise Clause.

In Sotomayor’s dissent, she stated the Court’s “decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

[1]Her history assessment can be the subject of much debate. As discussed in Professor Philip Hamburger’s book, “Separation of Church and State”[2] it is not a strong argument that the strict separation we consider in the modern day corresponds with our past. He points out in his book that the early Protestant communities in the United States found merit in the influence of religion in society as evident in their dedication to prayer in public forums such as appointment of chaplains[3], Protestant instruction and Bible reading as a core value in public schools[4] and local laws with respect to Sunday as the Lord’s day[5] among other influences. The main critiques of religion arose when the appropriate role of ministers in the community was considered with respect to political influence[6] and the emergence of Catholics who they found posed a threat to the society with proximity to the Pope[7].

Sotomayor ignores this in her dissent. By taking such a strong stance against religion and its influence in our society today, she is in essence denying a major component of the DNA of this nation and the principles it was founded upon.

In terms of precedent, she is correct in considering that the Supreme Court has been the chief enforcer of modern separation commentary. Major cases include Everson v. Board of Education[8] with the “Wall of Separation” constructed as a fundamental principle in interpreting the religious clauses and Engel v. Vitale[9] where prayer in public school was prohibited.

The merits of these cases, however, can be debated. If one wants to consider legal precedent these are persuasive cases, however, they reached a conclusion contrary to the founding principles of this nation. A case can be wrong the day it was decided and the Court should not be bound to follow it, but rather consider overturning if a case is heard with similar facts.

If Sotomayor took a closer look at the history of the nation, the view of religion in society predates these cases and should have been a persuasive consideration when adjudicating this case. However, assuming we concede the point and follow her reasoning that the precedent of separation should be maintained, she still does not persuade with her very drawn-out argument concerning the playground and “spiritual growth” of the students.

She states:

“The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.[10]

According to the mission statement, it is true that the Church considered the learning facility in the general sense to assist in spiritual growth of students, however the playground itself should not be categorized as a specific instrument for spiritual advancement. Sotomayor errs by equating the wall of a Sunday school and church pews to a premises of recreational activity. The playground surface could be constituted as part of a program that encourages spiritual growth, but it cannot hold this connotation on its own.

It further complicates her assessment if we consider facts in which the church rents out the playground for events to parishioners for non-religious activity or to unaffiliated individuals and groups. The premises would then be serving a wholly secular purpose.

Overall, Sonia Sotomayor’s dissent in Trinity Lutheran is very troubling to Constitutionalists that respect the text and original intent of the religious clauses embedded in the First Amendment. If the courts adopted her extended reasoning in this case and continue to hold the older religious cases in high esteem that began the separation commentary, religious freedom adjudication may further find itself in turmoil.

The outcome of this case was a positive development for this area of law, but no thanks to Justice Sotomayor.  Hopefully, if more of these cases come about, the Supreme Court can start to scale back the disastrous precedent that has been ever so persuasive on the jurisprudence of Justice Sotomayor and has denied the very fabric upon which our nation was built.




[1] 137 S. Ct. 2012, 2027 (2017).

[2] Philip Hamburger, Separation of Church and State (2002).

[3]  Id at 12-13.

[4] Id. at 220.

[5] Id. at 200

[6] Id. at 24, 112.

[7] Id. at 10.

[8] 330 U.S. 855.

[9] 370 U.S. 421.

[10] 137 S. Ct. 2012,  2029.


Predicting Kennedy in Masterpiece Cakeshop

This past week, the Supreme Court considered oral arguments in the Masterpiece Cakeshop[1] case. This case is one of the “blockbuster” cases this term for the Supreme Court. It will assess whether the owner of Masterpiece Cakeshop wrongly discriminated against a gay couple when he refused to make a same-sex wedding cake that would be in violation of his faith. This is a very heated case from both sides of the aisle, but this post will try to accomplish a nearly impossible task- try to predict how swing-vote Justice Anthony Kennedy will vote on this monumental case. There are various factors here including his history on the court concerning religious freedom cases.

I will focus this post on 2 major cases concerning religious freedom that Kennedy has been a part of during his tenure, Christian Legal Society[2] and Hobby Lobby[3]. After assessing them I will reach a conclusion and explain what the future may hold for cases in this category as a result.

Christian Legal Society

In Christian Legal Society, the Court assessed whether a campus student organization was in violation of an “All Comers” policy instituted by the school to welcome any student into their respective student group. The organization in question had a policy that did not allow membership to those that were involved in relationships that were in violation of Christian teaching. If the organization did not comply, it would not receive funding.

The Supreme Court held in a 5-4 vote that the school should not be compelled to alter its policy to allow for exclusion based on conduct. Kennedy wrote a concurrence in which he discussed the importance of the minority sentiment, in addition to discriminatory conduct:

“The school’s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime.”[4]

Here, Justice Kennedy seems to be hinting at the importance of not allowing minority communities to be limited with expressing personal beliefs. While the facts here are different it would not be entirely unreasonable to suggest that Kennedy may use this when considering the cakeshop conflict between the couple and the owner. However, then it becomes a question of whether the enumerated rights of the individual owner to freedom of religion and expression of his beliefs must yield to a customer that is demanding a certain product?

Kennedy’s past seems to suggest a trend towards the couple here, but this can be challenged. Does the couple have the right to demand a product be made for them if it is not a service offered by the owner? There is a distinction between not making products and not serving people that can be unpacked. As long as the pre-existing services are still offered is there really a discriminatory motivation? These are some questions to contemplate.

Hobby Lobby

Next, we turn to the Hobby Lobby case where Justice Kennedy voted with the majority to uphold the right of the closely-held corporation to not be compelled to provide coverage for abortifacients and other contraceptives in violation of their religious beliefs.

He provides a perspective in this opinion that would seemingly take stronger consideration of religious beliefs. He stated in concurrence:

“Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”[5]

In the early stages, Kennedy suggests religion as a right that has powerful force behind it. Then, he drifts into a discussion about the compelling interests test. In the facts of Hobby Lobby, the government had other alternatives to providing the coverage than forcing the closely-held corporation to provide it. Thus, Kennedy considered this persuasive in ruling for the closely-held corporation.

As applied to the facts of the cakeshop conflict, one must consider the role of government. Does the government have the right to compel a private business to make a certain product? Does it constitute discrimination to not make a product, thus requiring some government intervention?

Concluding Thoughts and a Bit of Obergefell

I do not think these facts line-up with discrimination, but it would not be unreasonable to foresee Kennedy going in the direction of Christian Legal Society because of the nature of the issue of sexual orientation. Kennedy has consistently found himself on the side of support for greater rights for same-sex relationships from Lawrence[6] to Windsor[7] to eventually Obergefell[8].

However, in Obergefell he did offer a bit of a nod to religious interests:

“it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”[9]

There is a question to how far Justice Kennedy would allow this religious interest to extend. Masterpiece will provide the ultimate test to Justice Kennedy and how far he is willing to balance the religious interests to government interests in regards to sexual orientation.

When considering Justice Kennedy’s history on the court regarding matters of religious freedom and sexual orientation, I tend to believe he will vote against the baker in this case. I will disagree with this outcome, but I think it is realistic to consider this possibility. I know some commentators have taken the opposite opinion , but I think they are in error to assume the baker will win.

The best chance for the future of this area in law to take better consideration of religious interests is a narrow holding and persuasive dicta by either Justice Gorsuch, Justice Alito, Justice Thomas or Chief Justice Roberts to allow for the issue to be re-litigated in the future with a different set of facts and new court composition. Overall, this case can be a losing battle in the overall effort, but this conflict is likely to not be resolved in one case and the future may hold a better outcome.

[1] Oral Arguments heard at Supreme Court- December 5, 2017.

[2] 561 U.S. 661 (2011).

[3] 134 S. Ct. 275 (2014).

[4] Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 705

[5] Hobby Lobby, supra note 3 at 2786.

[6] 539 U.S. 558 (2003). Supreme Court overturned Texas statute that banned sodomy.

[7] 133 S. Ct. 2675. (2013) Supreme Court found a right to same-sex relationship inheritance rights.

[8] 135 S. Ct. 2584 (2015). Supreme Court legalized same-sex marriage.

[9] Id. at 2607.