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November 7, 2008

Municipal Holiday Displays




Dear Mayor:

It is holiday time, and municipalities are once again faced with the decision of what sort of holiday display can be placed on municipal property. Unfortunately, the law remains unsettled concerning displays of religious symbols on government property. For example, two United States Supreme Court decisions from 2005 concerning the display of the Ten Commandments on government property came to opposite conclusions because of differing facts. In the case of McCreary County, Ky. V. the ACLU of Kentucky, 545 US 844 (2005), the Court found unconstitutional two displays of the commandments on the walls of courthouses, while in Van Orden v. Perry, 545 US 677 (2005), handed down on the same day, it upheld the display of a six-foot-tall granite monument of the commandments on the grounds of the Texas Capital in Austin.

The opinions did not reject or modify the complicated balancing tests the court used in earlier cases concerning displays of religious symbols on municipal or other government property.  Instead, it appeared to differentiate the two cases based upon historical context-the Kentucky courthouse displays had first been posted only six years previously, while the Texas monument had stood for forty years- and on the presence of other, secular objects on the grounds of the Texas capitol, where 37 non-religious items were also displayed. In each case, the majority opinion seemed to look at the entire context of the display to determine if it amounted to an unconstitutional state endorsement of religion.
Municipal holiday displays that are limited to more secular images, like Santa Claus and Christmas trees, are likely to survive constitutional scrutiny, However, it is still unclear under what circumstances more religious symbols, like creches, menorahs, or in related cases, copies of the Ten Commandments, may be displayed by a municipality or on municipal property. The Third Circuit cases on the subject all take pains to distinguish their holdings and insist that none of them contradict each other. Nevertheless, it is hard to formulate any set of rules to ensure that a given display is constitutionally permissible if it has any religious symbols in it.

In the case of ACLU v. Schundler, 168 F.3d 92 (CA3: 1999), the Court of Appeals ended a long and complicated series of cases concerning the legality of a holiday display in Jersey City by ruling in favor of the city. Initially, a case challenging the City's longtime display of a menorah and creche was brought by the ACLU, and the Court of Appeals ruled that the display did violate the establishment clause by "appearing to advance, endorse, or disapprove" of religion. The Court then refused to decide whether a new display erected by the city, adding Kwanzaa symbols, a sled, figures of Frosty the Snowman and Santa Claus and two signs concerning cultural and ethnic diversity to the creche and menorah, was constitutional. Instead, the Court sent this issue back to the District Court to decide, but stated that it was skeptical of the constitutionality of the expanded display. The District Court then found the new display illegal, but, on appeal, a different panel of the Court of Appeals reversed.

Two later cases dealt with the issue of standing to challenge displays. In ACLU-NJ v. Township of Wall, 246 F.3d 258 (CA3:2001), the display in question consisted of a creche, a lighted evergreen tree, and four snowman banners. The District Court rejected the Township's motion to dismiss the suit, saying that these residents had sufficient contact with the display to be offended by it, and thus had standing to sue. Before the case was tried on the merits, the Township added a donated menorah and two signs celebrating diversity to the display, and substituted more prominent secular banners and a larger tree. The District Court upheld this new display on the merits, and the plaintiff appealed. The Court of Appeals did not reach the merits of the case, but denied standing to the plaintiffs as to the second display because they had not had enough contact with it to be offended. However, in Freethought Society v. Chester County, 191 F.Supp.2d 589(D.PA: 2002), the Court found that a resident who had visited the county courthouse numerous times had sufficient standing to challenge a Ten Commandments plaque on the exterior of the courthouse. The court then declared the display of the plaque on public property to be unconstitutional and ordered it removed, although it had stood there since 1920.

The holdings in these cases, and in other cases arising in other parts of the country, are very much affected by the specific facts of each case and even the motivation in creating the displays. Therefore, it is unclear how to know if a specific municipal display with religious items in it will withstand constitutional challenge. While clearly diversity in the display is very helpful, it does not ensure legality.

While most of the cases have been considered under the “establishment clause” of the 1st Amendment, other arguments have been presented under the “free speech” provisions. Individuals who seek to have a more traditional religious symbol included in the municipal display, such as a menorah or a crèche, argue that their right of free speech is being denied when the municipality does not include it. There is a real danger to the municipality accepting that argument, since that would effectively render the area where the holiday display is placed a “public forum”. Once that occurs, it will be extremely difficult to prevent other displays that individuals or groups wish to see at that location in order to convey their particular message. That could include groups or individuals who want to put up signs for political candidates, advocate a particular political position, or advocate on any side of such controversial issues as abortion, racial diversity, war and peace, etc.

The law in this area remains unsettled and 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 Deborah M. Kole, staff attorney, at the League, ex. 137, or at


                                                                        Very truly yours,


                                                                        William G. Dressel, Jr.
                                 Executive Director




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