October 1, 2009
Re: Holiday Displays
The holidays are fast approaching, and municipalities once again face the issue of erecting permissible holiday displays on municipal property.
The leading case in this area of law is ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999). In that case, Jersey City erected, on city property in front of City Hall, a display with a nativity scene, also called a crèche, and a menorah. The ACLU challenged this display on First Amendment grounds in 1994, and the District Court ordered the city to never again erect the holiday display.
In 1995, Jersey City again erected a holiday display, again containing a crèche and a menorah. However, this time the city added Kwanzaa symbols, figures of Santa Claus and Frosty the Snowman, a sled, and signs that indicated the city celebrated the diverse cultural and ethnic heritages of its residents. All of the displays were of roughly the same size and prominence. The Third Circuit Court of Appeals found this a permissible display that did not run afoul of the Establishment Clause of the First Amendment. This case gives some general guidelines to municipal officials for permissible holiday displays.
A purely religious display, especially one related to a single religion, is almost certainly unconstitutional. In a prior case, the United States Supreme Court held a crèche, with a few poinsettias and a banner reading “Gloria in Excelsis Deo!” had the “unconstitutional effect of conveying a government endorsement of Christianity.” Allegheny v. ACLU, 492 U.S. 579, 627 (1989).
A display containing symbols from different religions, as well as secular symbols of the holidays, is likely constitutional. The constitutionality of such a display is further enhanced if a secular message is also included; for example, the message in the Jersey City display celebrating the diverse cultural and ethnic heritages of its residents, or another display in the Allegheny case that consisted of a menorah, a Christmas tree, and sign celebrating liberty and freedom. The Supreme Court found the inclusion of the secular Christmas tree and secular message rendered the display constitutional. Id. at 659.
The secular symbols and messages should not be included merely as an attempt to legitimize the religious aspects. To that end, they should be at least as prominent as any religious displays.
The law in this area remains complex, and municipal officials should consult their municipal attorneys about the legality of their particular display and the potential future impact of any decision reached.
If you have any questions or concerns about this communication, please contact Matthew Weng, staff attorney, at the League, ex. 137, or at firstname.lastname@example.org
Very truly yours,
William G. Dressel, Jr.