So many of the activities during the Christmas season have become completely secularized. Our church would like to help "Keep Christ in Christmas" by erecting a nativity scene in a popular park here in town. Here are some questions we have about this.
Didn't the Supreme Court rule a few years ago that such nativity displays are unconstitutional?
No. The Supreme Court has never said that private citizens can be barred from setting up a nativity display, or any other display of a religious nature, in a public park. In the only two cases decided by the Supreme Court, the nativity displays were either owned or maintained and promoted by the government [FN14] In one case, the nativity display, which was part of a larger display with a generally secular theme, was held not to violate the Establishment Clause. [FN15] In the other case, the nativity display, which stood alone, was held to be a violation of the Establishment Clause. [FN16]
Can the parks department compel us to include such things as snowmen, fairies, Santa Clauses, etc., in order to emphasize secular aspects of the holiday? Can they bar us from including such wholly religious aspects as a sign saying "Keep Christ in Christmas?" Can they prohibit us from singing traditional religious Christmas music? Can they compel us to sing secular songs?
No. No. No. No. In order to understand the legal issues involved, think of your nativity display as a message to the public. By setting up the creche, you are telling your fellow citizens to "Keep Christ in Christmas." By singing traditional, religious carols, you are showing the public how to "Keep Christ in Christmas."
Viewed in this way, it becomes clear that it is inappropriate and unconstitutional for a government entity to meddle with your message. Fifty years ago, the United States Supreme Court held that a religious adherent could not be compelled to participate in a flag salute if such participation would violate rights of conscience. [FN17] Compelling a flag salute in such circumstances would be a presumption that a government official could prescribe orthodoxy of opinion. But, as the Supreme Court interpreted the Constitution, such a presumption was unconstitutional. The Supreme Court said,"[i]f there is any fixed star in our constitutional constellation, it is that no official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." [FN18] In like manner, a parks authority official cannot determine for you what kind of expression is appropriate in your private display.
Are there any new developments in the law concerning public displays of nativity scenes?
Yes, it is constitutional when churches, community groups, civic organizations, or private individuals privately display nativity scenes, or other religious symbols, on property which is considered to be open for the use of the public, such as public squares where other displays are permitted.
The Supreme Court recently decided a case that helps clarify the law regarding nativity scenes and other public property displays of religious symbols. [FN19] The Court relied heavily on its decisions in Lamb's Chapel and Mergens when it held that the Ku Klux Klan had a right to display a cross on public property where other religious and secular symbols were being displayed.
Bolstering the protection of religious speech, the Court stated that "[o]ur precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." [FN20] The need to reinforce the existing Constitutional protection against hostility, that is often aimed at religious speech, was expressed by the Court when it stated that "[i]ndeed, in Anglo-American history . . . government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince." [FN21] The Court's logic was heavily influenced by the fact that the government was not endorsing the displays because the area was open to all religious and secular symbols representing private expression. [FN22]
Perhaps the most telling comment from the Court discusses the fact that a contrary view "exiles private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech. It will be a sad day when this Court casts piety in with pornography, and finds the First Amendment more hospitable to private expletives, than to private prayers. This would be merely bizarre were religious speech simply as protected by the Constitution as other forms of private speech; but it is outright perverse when one considers that private religious expression receives preferential treatment under the Free Exercise Clause. It is no answer to say that the Establishment Clause tempers religious speech. By its terms that Clause applies only to the words and acts of government. It was never meant, and has never been read by this court, to serve as an impediment to purely private religious speech connected to the State only through its occurrence in a public forum." [FN23] Thus, it is unlawful for religious speech or displays to be excluded from public property solely on the basis of the religious nature of that speech or display.
The Plurality concluded with a quick summary stating that "[r]eligious expression cannot violate the Establishment Clause, where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms." [FN24] Therefore, it is constitutional when churches, community groups, civic organizations, or private individuals privately display nativity scenes or other religious symbols on property which is considered to be open for the use of the public, such as public squares where other displays are permitted.
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