While the spirit of the Establishment Clause guides court decisions year round, Establishment "Claus" is the true legal superstar of the holiday season.
Establishment Claus, you see, is the oft-perplexing, always-vexing nemesis of state institutions that want to get festive without getting entangled in the twinkle lights of religion.
Thanks largely to the busy legal elves at the American Civil Liberties Union (ACLU), Establishment Claus always knows who's being constitutionally naughty or nice.
Whether you're happy about Hanukkah, ecstatic for Eid, crazy for Christmas, cuckoo for Kwanza or just absolutely ambivalent, here are a few tips for decorating for holidays SCOTUS-style.
- Crèches: Acknowledging the religious heritage of the winter holidays is A-OK. In 1984, the Supreme Court said a city-owned holiday display that included a nativity scene, Santa and his reindeer, a Christmas tree, and a "Seasons Greetings" banner did not violate the Establishment Clause because it had a secular purpose and there was no undue administrative entanglement with religious authorities. By contrast, the Court ruled in Allegheny County v. Greater Pittsburgh ACLU that a crèche at a county courthouse that wasn't diluted with secular references violated the Establishment Clause. (It didn't help that the latter crèche was owned and maintained by a Catholic group.)
- Menorahs: The Supreme Court is fine with an "18-foot Chanukah menorah of an abstract tree-and-branch design," located outside of a government building when it's placed next to a 45-foot Christmas tree, but the Second Circuit Court of Appeals says a solitary 16-by-12 foot menorah with a "Happy Chanukah" sign located 60 feet away from City Hall was unconstitutional.
- Christmas Tree: Despite the religious reference in the name, the Supreme Court says that Christmas trees are the preeminent secular symbols of the Christmas season. (We doubt the Druids would agree, but when was the last time you met a Druid?)
This, of course, is not a dispositive guide; many circuits have contradicted the Supreme Court, and even their own precedent, with decisions regarding holiday displays.
Our suggestion? When in doubt, go with a city-owned celebratory hodgepodge of holiday fixtures. For good measure, throw in a Sixth Circuit-approved, ACLU v. Wilkinson disclaimer stating "This display does not constitute an endorsement of any religion."
As you contemplate whether the robot, teddy bear, and baby Jesus display you're assembling -- yes, one of the SCOTUS-condoned crèches included robots -- will pass constitutional muster, perhaps you'll also consider penning a letter to Santa Claus, asking for Supreme Court clarity on Establishment Claus.
- Is Justice Clarence Thomas Right About the Establishment Clause? (FindLaw's Supreme Court blog)
- Crèche Test Dummies (Slate)
- It's Beginning to Look a Lot Like Christ-Mess (ACLU)
- 5 People Every Attorney Should Give a Christmas Present (FindLaw's Greedy Associates)
- Prisoner Cites 'Seinfeld's' Festivus Religion - And Wins! (FindLaw's Legal Grounds)