Supreme Court to weigh 'war on Christmas' issues

It's the holiday season again, and along with celebrations of religious holidays, the time is here for lawsuits about Christmas displays on public property and the expanded debate about "the war on Christmas."

The popular TV talk show host Bill O'Reilly's annual debate about political correctness includes spirited discussions with atheist groups about the right to have "religious displays" removed from taxpayer-owned property.

The groups, such as the Freedom from Religion Foundation and American Atheists Inc., appreciate the exposure given to them by O'Reilly, since membership numbers and donations spike after they debate him. Fox News, O'Reilly's employer, obviously likes the topic enough to make it an annual event.

But what does the Supreme Court, which is the highest court in the land, think about the presence of holiday symbols that might have a religious connotation on public land or at taxpayer-funded facilities?

The Court's views on Christmas could change next year as it considers the case of Town of Greece v. Galloway, a struggle over the rights of an upper New York state town council to open its meetings with a public Christian prayer.

A central issue in the Town of Greece case is the Endorsement Test, an idea fostered by Justice Sandra Day O'Connor in 1984. The test states that in order for a government action to comply with the First Amendment's Establishment Clause about religion, it can't take actions that seem to  endorse or disapprove of religion from the perspective of a reasonable observer.

"Endorsement sends a message to non-adherents 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," O'Connor said.

The Establishment Clause is the critical part of the First Amendment that reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

There are indications that the current Supreme Court, with its conservative majority, could back away from the Endorsement Test in the Town of Greece case. Such an outcome would broaden the powers of state and local governments to allow religious symbols and practices on taxpayer-owned facilities.

The Endorsement Test came out of a Supreme Court case about Christmas, and not public prayer, and the same case gave birth to the Court's famous Plastic Reindeer Rule.

In Lynch v. Donnelly from 1984, the Court was asked to consider if the First Amendment prohibited a municipality from including a creche, or Nativity scene, in its annual Christmas display.

The holiday display in Pawtucket, Rhode Island, included the crèche along with other secular symbols such as a plastic reindeer, a Santa Claus house and a Christmas tree.

Chief Justice Warren Burger allowed the crèche to stay at the exhibit.

"If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution," Burger said. "We are satisfied that the city has a secular purpose for including the creche, that the city has not impermissibly advanced religion, and that including the creche does not create excessive entanglement between religion and government."

Court observers at the time saw the presence of the reindeer as broadening the purpose of the display.

A second holiday-related decision in 1989 clarified the Court's position on crèches. In County of Allegheny v. American Civil Liberties Union,  in Pittsburgh, only one was permissible.

Inside a courthouse the county had set up a crèche with a banner that read "Glory to God for the birth of Jesus Christ." It omitted a plastic reindeer, a Christmas tree or a Menorah. The Justices objected to that display.

A second display outside the Allegheny County courthouse featured a Menorah, a Christmas tree and a sign honoring Liberty. "We agree that the creche display has that unconstitutional effect, but reverse the Court of Appeals' judgment regarding the menorah display," said Justice Harry Blackmun.

The Endorsement Test advocated by Justice O'Connor in the Lynch case played a critical role in the Allegheny case.  And in her concurring Allegheny opinion, she stressed what she meant in Lynch.

"In my view, the central issue in Lynch was whether the city of Pawtucket had endorsed Christianity by displaying a creche as part of a larger exhibit of traditional secular symbols of the Christmas holiday season. In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the crèche."

After the rulings in Lynch and Allegheny, the Court has mostly stayed out of cases involving the holiday season. It declined to hear cases involving a Menorah displayed by itself at a city park; a Menorah and crèche combined with Frosty the Snowman and Santa Claus; an attempt to have Christmas decertified as a federal holiday; and efforts to allow Christmas music to be played over the intercom at public schools.

This year, the American Bar Association says several other local holiday display tests are brewing.

Nativity scenes paid for with private funds are on display at the Illinois state capitol (next to a holiday tree). At the Florida state capitol in Tallahassee, another nativity scene is located next to a Menorah, but a local group has won approval to put a Seinfeld-inspired Festivus pole made of beer cans near the Nativity scene.

Scott Bomboy is editor in chief of the National Constitution Center in Philadelphia

The National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.