Should it Stay or Should it Go? 3 Tips for Constitutional Holiday Cheer - Injury and Tort Law - U.S. Supreme Court
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Should it Stay or Should it Go? 3 Tips for Constitutional Holiday Cheer

The holidays are upon us! Hanukkah begins this weekend. Christmas trees are popping up around town. Barbara Walters is picking her most fascinating people of the year.

It's truly the most wonderful time of the year ... to discuss the Establishment Clause.

Each year, the debate begins anew: Which holiday traditions are constitutionally-condoned based on the Supreme Court's Establishment Clause rulings? Here are three tips to guide you when spiking publicly-owned spaces with holiday cheer.

  1. Go Green. Whether you want a Christmas tree or a Hanukkah bush, holiday trees pass constitutional muster. The Supreme Court says that trees are secular symbols of the Christmas season, and perfectly legal.
  2. Mix and Match. Much like the cast of Glee, the federal courts seem to love holiday mashups. In Lynch v. Donnelly, the Supreme Court approved a Pawtucket, Rhode Island holiday display that combined a crèche, a live Santa distributing candy, reindeer, a 40-foot Christmas tree, a "talking" wishing well, candy-striped poles and various "cut-out" figures including a dancing elephant, a robot, and a teddy bear. If you don't have enough space for a similar mishmash, consider a multi-tasking element like a robot baby Jesus.
  3. State Your Intentions. In ACLU v. Wilkinson, the Sixth Circuit Court of Appeals allowed a holiday display with the following disclaimer: "This display does not constitute an endorsement of any religion." While a court may question the sincerity of such a disclaimer if the display is clearly religious -- all crèche, no Claus -- a placard might placate some would-be litigants if your display includes secular elements.

There are still a number of gaps in the Court's Establishment Clause rulings. If you don't want to end up arguing about why your decorations shouldn't be on the naughty list, stick with the secular options.

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