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.

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