72. Thinking about Christmas: 4. Baby Jesus v. the Constitution of the United States

In the past two years, I have been using Christmas as a way of looking at the space that exists between religion and the rejection of religion.  Christmas is the perfect foil because Christmas is strongly embedded in secular Western liberal society. We know that it has theological themes. But even if we personally reject those beliefs, we do love the idea of Christmas.

It seems that Christmas — as a quasi-religious celebration — represents a form of massive social deception or shared delusion. As a consequence, some have argued that Christmas and its trappings should be discouraged [55].

But, of course, we roll our eyes when someone takes issue with Christmas based on logic or intellect. Because we know whatever Christmas is, it is primarily sentimental.

[The sentimentality of Christmas is further highlighted by fact that most of us will buy gifts for our pets at this time. Of course, it is ridiculous. But we all do it. And I am pretty sure that Christian doctrine is silent on the relationship between the birth of its god-child and buying a Christmas gift for your pet.]

Debate over Christmas has tended to focus on the public and visible meaning of this holiday.  Christmas and any religious meaning associated with it (if displayed upon property owned or maintained by the state or any publicly-funded organization) runs the risk of violating the First Amendment of the Constitution of the United States.

[Of course, if you do not live in the United States, then do whatever you like — well, not if you live in China, or Saudi Arabia, or Pakistan, or Iran, or North Korea.]

The First Amendment reads:

  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.

At its inception, the United States of America was predominantly a Christian nation and the establishment clause was an attempt to prevent state sponsorship of one Christian religion over another.  The intent was to enshrine reasonable expression of belief, speech, and assembly and to avoid the possibility of sectarian wars that had plagued Europe.

However, monotheism was important to the new country.  It was, after all, one nation under God and in that God it did trust.

The exact meaning of the First Amendment, as it pertains to the celebration of the birth of Christ at Christmas, has generated reams of paper and stemmed many arguments — with some leading to the Supreme Court as the penultimate arbitrator.

An early skirmish between the infant Jesus and the State was heard in Baer v. Kolmorgen (1958). The plaintiffs in this action sought an injunction against a nativity scene placed on the lawn of a public high school in Ossining, New York. Their request was dismissed by the Westchester County Supreme Court of New York with that court finding no violation of the First Amendment. The court highlighted that the nativity display was created by a nondenominational Crèche Committee, that the committee used no public funds in the construction or maintenance of their nativity scene, and that the crèche was displayed when school was not in session. The Court was of the opinion that the nativity scene was consistent with decorations normally displayed at Christmas time and was not convinced that those decorations represented an attempt to establish religion or deny others expression of their religious beliefs.

In 1970, in Allen v. Hickel, the nativity scene was again challenged. The offending crèche was part of a Christmas display — the Pageant of Peace — that included reindeer and other traditional holiday symbols placed on a national park directly across from the White House.  Whereas Allen v. Hickel was originally dismissed due to procedural matters, that dismissal was later appealed and reversed. Eventually this matter was heard as Allen v. Morton (1973) at a higher appellate Federal Court.  Whereas the judicial panel did not find the presence of a crèche on government property, by itself, unconstitutional, they did express concern that the involvement of government (through financial, technical, or staffing support) might imply formal and exclusive sponsorship of Christianity.  The Court felt that the crèche should not be displayed in future Pageants of Peace.  Failing that, if the crèche was used in the future, there should be clearly visible disclaimers notifying Christmas revelers that the depiction of festive spiritual images or objects does not mean government promotion or sponsorship of the specific religion attached to those symbols.

As in Baer v. Kolmorgen (1958), the constitutional importance of the Allen actions focused less on where the crèche was displayed and more on who, and in what role, sponsored the nativity scene.

In the 1980s, Baby Jesus and his crib returned once again to Federal Court and three actions were subsequently heard at the Supreme Court level: Lynch v. Donnelly (1984), McCreary v. Stone (1984), and Allegheny County v. American Civil Liberties Union (1989).

In Lynch v. Donnelly (1984) the matter under dispute was the inclusion of a nativity scene in an annual Christmas display erected in Pawtucket, Rhode Island on a privately owned park. The display was jointly supported by the city and the city’s downtown retail merchants association.  (As an aside, the head corporate office of Hasbro — one of the world’s largest toy company — is located in Pawtucket.)

Daniel Donnelly (and the American Civil Liberties Union) brought suit against Pawtucket and its mayor, Dennis Lynch, arguing that the crèche included in the holiday display violated the establishment of religion clause in the First Amendment. The federal court at the district level agreed and ruled that the nativity scene promoted and affiliated the city with Christian beliefs.  The ruling was upheld by the Court of Appeals and eventually found itself being heard at the Supreme Court.

The Supreme Court, in a majority decision, overturned the lower courts and did not find the presence of the nativity scene unconstitutional.  The pivotal opinion was Justice O’Connor.  Whereas, she agreed that the presence of a particular religious theme may run the risk of aligning government to that religious belief (and thereby possibly exclude or make others unwelcome in political participation), she also argued one must consider the entire context in which the religious theme is placed. Because the Pawtucket Christmas display included many other secular Christmas symbols (such as Santa, reindeers, and Christmas trees), the presence of the crèche could be seen as consistent with the history, culture, and traditions of American society.

As argued in a later matter by Justice O’Connor, acknowledgement of religion does not necessarily mean endorsement of religion.

Closely following Lynch v. Donnelly, was McCreary v. Stone (1984). Whereas Lynch focused on the presence of the Christmas crèche, McCreary focused on its absence.

Here, the city of Scarsdale, New York, prohibited the placement of a privately-funded crèche in a public park.  That prohibition was appealed to the Supreme Court but the Court rendered no definitive position and was split evenly.

In the American Civil Liberties Union v. Allegheny County (1988, and, on later appeal, Allegheny County v. American Civil Liberties Union, 1989), the crèche one again came before the Supreme Court. The crèche under dispute was funded by the Holy Name Society of the Roman Catholic Diocese of Pittsburgh and was displayed in the first floor staircase of the county courthouse. The display was modest and it was labeled as being donated by the Holy Name Society.

As before, Justice O’Connor provided the deciding opinion.  This time, however, she joined the majority 5-4 Supreme Court ruling that the crèche was unconstitutional.

To O’Connor, where the crèche was placed — the County courthouse — and its isolation from other holiday displays suggested specific government endorsement of Christianity and tacit exclusion of other forms of belief. It’s effect, therefore, was deemed not consistent with the First Amendment.

If we tally all the judicial opinions rendered in the three cases that ended up at the Supreme Court, we have 38 opinions.  That is, typically, for each case, we have one opinion at the initial level, three opinions on appeal, and nine at the Supreme Court.  We are missing one opinion due to the absence of a Supreme Court Justice Powell in McCreary v. Stone (1984).

Here is what those numbers look like:

72. Federal Court Opinions

In the case of Baby Jesus v. the First Amendment, the overall opinion of the Federal judiciary seems to be divided equally.

Can we keep Christ in Christmas?

Well, possibly in Pawtucket.  Probably not in Pittsburgh.