By Wayne J. Oppito, Esq.
As the holiday season approaches, schools across the country celebrate with Christmas, Chanukah and other religious displays. Do these displays comply with the First Amendment’s principle of the separation of church and state?
Though the Constitution clearly forbids an established government religion, each year during the holiday season, we see the inevitable interaction between government and religion. Almost every school and classroom has a holiday display, as do most municipalities. It has been argued that observing the holiday season in such a fashion is a form of governmental support for religion. The converse argument is that government neutrality does not mean that government must be an antagonist toward religion. Former Supreme Court Justice, William O. Douglas, once stated that “we are a religious people whose institutions presuppose a supreme being.” As a result, the U.S. Supreme Court holds the position that the Constitution does not require a complete separation between church and state, but rather affirmatively mandates accommodation for religion and non-religion alike. The religion clauses of the First Amendment, once viewed as a “wall” of separation between church and state, can today be more aptly described as a jagged line subject to a case-by-case examination.
City-Sponsored Nativity Scene
In an early case involving a city-sponsored nativity scene, the focus was on a Christmas display in the city of Pawtucket, R.I. The display was comprised of many figures and decorations traditionally associated with Christmas including among other things, a Santa Clause house, reindeer, candy striped poles, a Christmas tree, carolers, a large banner reading “Season’s Greetings,” and a nativity scene. The display was situated in a park owned by a non-profit organization and located in the city’s shopping district. The display was purchased and directed with public funds.
In response to a legal challenge that the inclusion of the nativity scene violated the Establishment Clause of the First Amendment, the United States Supreme Court found that the display, in its entirety, had a secular purpose. The court said that the focus should not be on the nativity scene alone, but on the entire display which, when viewed in its proper context, was meant to celebrate the “holiday” and to depict the origins of that holiday. The Supreme Court emphasized the need for accommodation between church and state, not total separation.
In the judgment of the majority of the court, no fixed, per se rule can be framed. Each situation is subject to a case by case inquiry. The decision in the Rhode Island case appeared to be inviting more challenges to what was once a more complete and absolute doctrine of separation of church and state. The conclusion of the court was based on the American historical experience concerning the public’s secular celebration of Christmas. This viewpoint does present its risks, which is best illustrated by the dissenting opinion. Justices Blackman and Stevens concluded in their dissent that the nativity scene:
“has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory – but it is a pyrrhic one indeed.”
Holiday Displays and School Calendars
In a New Jersey case challenging a local board of education policy regarding holiday displays and school calendars, Clever v. Cherry Hill Bd. of Ed., the United States District Court for the District of New Jersey wrote, “The Christmas season brings with it not only sidewalk Santas, mercantile mania and endless reruns of ‘It’s a Wonderful Life’ and ‘Miracle on 34th St.,’ but also a spate of constitutional litigation testing the limits to which governmental or public bodies may legally join in the festivities.”
In defending its policy, the school district indicated that its purpose was the “advancement of students’ knowledge about our society’s cultural, ethnic and religious diversity” from its “diverse community with a variety of cultural, ethnic, and religious backgrounds.”
The policy required that during the ten month school year, one centrally located bulletin board in each elementary and intermediate school and a calendar poster in each elementary school classroom be used to display “the month’s cultural, ethnic and religious holidays” taken from the district-approved list prepared by the Commissioner of Education.
The central calendar which was required in all elementary and intermediate schools was optional in high schools “at the discretion of the principal.” In all schools, a display with a religious symbol was permitted in “one central school location” provided that the display was “for a period of time not to exceed ten school days.” However, the religious symbol “must be displayed simultaneously with a least one other religious symbol of a different religion and a least one cultural and/or ethnic symbol.” Any centrally located display must be “accompanied by a written explanation that describes the cultural, ethnic, or religious significance of the symbol used in the display.” Displays of religious symbols were permitted in classrooms, provided that “such symbols are part of the planned program of instruction…” However, if a display is prepared, it must meet three criteria: (1) it must be “displayed as an example of the holiday’s cultural, ethnic, and/or religious significance;” (2) it must be “pictorial in nature or [be] created by students;” and (3) it must “remain on display within a timeframe that corresponds to the unit being taught.”
Individual religious pieces of music could be performed but the total effect of a music program must be “nonreligious” and could not “have the effect of being religiously oriented or a religious celebration.” Special instructions pertained to Christmas trees and menorahs. Christmas tree decorations could not include “items such as angels or Jewish stars.” Lights could be used for a Christmas tree or a menorah, but “all lights on the menorah were to be turned on simultaneously; electric bulbs only.” Candles could be used, but “they are not to be lighted.” The use of a crucifix or a three dimensional nativity scene was prohibited.
Members of the public or staff members could make requests for changes “in the list of dates used for the calendar.” Parents/guardians had the right to request that students be excused from activities deemed objectionable.
In upholding this policy, the court found that the policy had a genuine secular purpose of promoting “the educational goal of advancing student knowledge about our cultural, ethnic, and religious heritage and diversity.” The court stated, “Christmas and Chanukah are celebrated as cultural and national holidays as well as religious ones, and there is simply no constitutional doctrine which would forbid school children from sharing in that celebration, provided that these celebrations do not constitute an unconstitutional endorsement of religion and are consistent with the school’s educational mission.”
The court further determined the calendars and related materials, which emphasized tolerance and diversity, involved no permanent display of religious symbols or forced participation in a primarily religious rite or exercise. The court, in noting that the absence of religious displays normally lacks First Amendment significance, indicated that, “[A]s our nation becomes overwhelmed with the tangible evidences of the year-end holiday spirit, the studied absence or even limitation of consistent celebration within the school might well be interpreted by a student as governmental hostility to the celebrating religions.”
The court concluded, “Religion is a pervasive and enduring human phenomenon which is an appropriate, if not desirable, subject of secular study. It is hard to imagine how such study can be undertaken without exposing students to the religious doctrines and symbols of others.” Finding the policy had a genuine secular purpose, did not promote religion, and did not create a governmental entanglement with religion, the court dismissed the lawsuit.
School districts must be careful with holiday displays. These two decisions guide us:
- It is important for the school district to have a written policy.
- Inclusion of a nativity scene in a Christmas display would require similar treatment of other holidays of other religious groups.
- Such treatment may invite litigation for excessive government entanglement with religion and, perhaps, even political divisiveness.
- Holiday displays and holiday musical programs must be viewed in their entirety and in the context of a celebration of a holiday which, in large measure, has become a national secular holiday.
- The U.S. Supreme Court has determined that each case must be decided on its own merit, based on relevant circumstances.