The Legal Nightmare Before Christmas: The Constitutionality of Holiday Displays

Twas the month of November, when all through the town

The grinches were stirring, getting ready to frown

The decorations were placed outside the town hall with care

There was a crèche, menorah, Santa Claus, candy canes, lights and even a bear


The mayor was nestled all snug in her bed

While visions of town unity and good cheer danced in her head

Meanwhile town council had settled down by its fire

Not expecting lawsuits or unbridled ire


When out in the square there arose such a clatter

The mayor sprang from her bed to see what was the matter

After sending an e-mail to the town solicitor that is

That’s just good sense, he’s a real whiz


Out of the dark night small figures suddenly appeared

Angry citizens want the decorations down, just what was feared

Knowing that her own knowledge would not suffice

The mayor turned to the solicitor for a little advice


Well, said the solicitor, the Constitution is what matters

Without its protections the American Ideal would be tatters

The Establishment Clause says church and state must remain apart

But sit down and get comfortable, that’s only the start


Although the law remains unsettled which has caused quite a fervor

The question is what the holiday display engenders in the mind of a “reasonable observer”

Is it purely religious in nature or secular in fact

Promoting religion leaves you subject to attack


First things first, let’s consider a government-sponsored display

Use great caution here, else the town will face great dismay

Religious symbols on their own – menorahs, crèches, etc. – just simply won’t do

The Supreme Court made that clear, that’s unconstitutional through and through


Context is the key, create a secular non-religious focused display

A holiday scene with a Santa Claus house, snowmen, Christmas trees, candy canes (even with a  crèche, menorah or other religious symbol mixed in) is surely okay[i]

Of equal importance don’t include a religious greeting

Using “Happy Holidays” or “Salute to Liberty!” will save you a beating


Permitted private displays in public forums[ii] are a whole new affair

Caution needs to be exercised or the town won’t have a prayer

Under the First Amendment the government must act in a viewpoint-neutral manner

Groups of all kinds, including religious, have the right to hang their decorations or banner[iii]


The take away here is truly important

The message is one of neutrality rather than endorsement

Ensure that the town display is secular rather than religious

Folks these days are rather litigious


The mayor hung up the phone and went back to bed

She was confident her display was secular and there was nothing to dread

The lawyers at Nauman Smith pass on a message, both heartfelt and sincere

Happy (Secular) Holidays to all and a Happy New Year[iv]



[i] Although the “holiday display” jurisprudence is rather confusing (one valid interpretation would be that religious symbols are permitted except when they are not), there are some clear rules municipalities can rely on to protect themselves. The Supreme Court has made it clear that Christmas trees on their own are constitutional because they represent the secular celebration of the “Christmas season” rather than the Christian holiday of Christmas. As an example, the National Park Service erects a Christmas tree topped by a star in front of the White House each year, which the President lights. Similar reasoning should extend protection to Santa Claus figures, elves, stars, and toys.

Further, the Supreme Court and other lower courts have held that holiday displays that include religious objects do not violate the establishment clause as long as the display taken as a whole is secular and the religious objects are not the focal point of the display. The Third Circuit Court of Appeals (the federal appeals court with jurisdiction over Pennsylvania) held that the establishment clause was not violated by a city holiday display located on city hall plaza that contained a crèche, menorah, Christmas tree, ornaments displaying Kwanzaa symbols, figures of Frosty the Snowman and Santa Claus, and two signs stating that the display was meant to celebrate its residents’ cultural and ethnic diversity.

The test of constitutionality under the establishment clause (the “reasonable observer” test) is, in essence, one of common sense. Municipal governments may not promote religion. This principal applied in the context of holiday displays means that religious symbols should not be the focus of the display. If a wide variety of secular holiday symbols are included in a display, a religious symbol may be mixed in, but should not overshadow the other decorations such that the overall message of the display remains secular rather than religious. Keep in mind, the test is whether a “reasonable observer” would perceive the display as predominantly religious rather than secular. Government officials should put themselves in the shoes of a skeptical observer when deciding whether their display passes constitutional muster, just to be safe. When in doubt, exercise caution and give the solicitor a call.

[ii] The Constitution protects the rights of private citizens to engage in religious speech in a public forum under the First Amendment. The nuances of the right to free speech are beyond the bounds of this poem; however, note that the Supreme Court held that a private group could erect a cross in a public park (parks are considered traditional public forums) during the holiday season.

[iii] If private groups or individuals erect religious themed displays, municipalities would be wise to require a sign informing the public that the display is sponsored by a private party in order to make it clear that the government is not sponsoring the message.

[iv] The author wishes to formally apologize to Clement Clarke Moore, author of “A Visit from St. Nicholas,” for butchering his wonderful poem.

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