Scenes and Christmas Carols in Public Places
By Mathew D. Staver, Esq.
Copyright © 1999
scenes on public property and religious Christmas carols in the public schools
are rapidly disappearing from American culture. The loss of religious consensus
and the "separation of church and state" myth have contributed toward
the demise of America's Christian heritage.
the 1970's the American Civil Liberties Union (ACLU) was initially successful
in removing nativity scenes from public property. However, the United States
Supreme Court has now dealt with the issue of nativity scenes.(1) The Supreme
Court has never ruled that all nativity scenes on public property are unconstitutional.
To the contrary, nativity scenes are constitutional if properly displayed.
Unfortunately, the ACLU has used smoke and mirrors to intimidate public officials
into removing nativity scenes and Christmas carols from the public square.
More unfortunate is the fact that many public leaders cower to these threats
without ever considering whether the ACLU is right.
display of nativity scenes takes on two forms: publicly-sponsored and privately-sponsored,
both of which can be displayed on public property. A publicly-sponsored nativity
scene is one that is erected and maintained by private citizens. Both are
constitutional, and both can be displayed on public property. The main difference
is that a publicly-sponsored nativity scene should have some form of secular
display in the same context, while a privately-sponsored nativity scene need
not have any secular symbols, but should probably have a disclaimer.
Publicly-Sponsored Nativity Scenes
example of a publicly-sponsored nativity scene is one that is erected and
maintained by city officials on public property. The key to the constitutionality
of a publicly-sponsored nativity scene is that it must have a secular symbol
of Christmas within the context of the nativity scene. The display of a publicly-sponsored
nativity scene standing by itself would be considered unconstitutional.(2)
However, if secular symbols of Christmas are displayed within the context
of the nativity scene, the Supreme Court would consider it constitutional.
Therefore, in a publicly-sponsored nativity scene, there should also be a
secular symbol of Christmas such as Santa Claus, a reindeer, or a Christmas
proximity of the secular symbols to the religious display is also important.
The secular and religious displays should be within the same parameter of
view. In other words, when viewing the nativity scene, one should also be
able to view the secular displays in close proximity. A nativity scene could
be displayed with Mary and Joseph looking into the manger at Baby Jesus, and
Santa Claus could be standing near the manger; his reindeer could be parked
somewhere nearby, and a Christmas tree could also be located nearby.
main point to consider in a publicly-sponsored nativity scene is that there
must be a combination of both secular and religious symbols of Christmas.
A publicly-sponsored display of religious symbols standing alone is unconstitutional.
According to the United States Supreme Court, adding secular symbols to a
publicly-sponsored religious display magically makes the display constitutional.
Privately-Sponsored Nativity Scenes
privately-sponsored nativity scene can also be displayed on public property,
with the main difference being that the display is erected and maintained
by private citizens instead of public officials. Privately-sponsored nativity
scenes are more common in public parks where citizens are allowed to engage
in expressive activity.(3) In most public parks, citizens are allowed to hold
gatherings and erect displays. To prohibit religious expression in a public
park where other expressive activity is permitted violates the Constitution.
Public officials cannot show hostility toward religion by allowing secular
expression but prohibiting religious expression.
a privately-sponsored nativity scene, there is no need for secular symbols
of Christmas to be displayed within the same context of the religious symbols.
A privately-sponsored nativity scene can stand alone, with no display of Santa
Claus, a reindeer, a Christmas tree, or other secular symbols. However, in
order to clearly designate that the display is privately-sponsored, a disclaimer
should be erected, similar to the following example: "This display is
privately-sponsored by ABC. The City of XYZ does not endorse nor oppose the
carols in public schools should be considered similar to publicly-sponsored
nativity scenes. Religious Christmas carols are permissible in the public
schools as long as secular songs of Christmas are sung within the same context.(5)
For example, a school chorus can sing "Silent Night, Holy Night,"
if within the same setting the chorus also sings secular songs, such as "Rudolph,
the Red-Nosed Reindeer." There is no requirement that a secular song
immediately follow a religious song, nor is there a requirement that the songs
be divided equally. There should probably be some balance between the secular
and religious songs. The main point is that secular Christmas songs should
be interspersed throughout the presentation.
faced with a situation where a teacher refuses to permit the singing of religious
Christmas songs during a Christmas pageant or chorus, parents and students
may insist that religious Christmas songs be sung. The celebration of Christmas
clearly has secular and religious aspects. To celebrate only the secular aspects
while excluding the religious aspects is outright hostility toward religion.
This form of bigotry and religious hostility need not be tolerated.
nativity scenes are constitutional so long as within the context of the religious
display there are also secular symbols of Christmas. Privately-sponsored nativity
scenes are also constitutional. There is no requirement that secular symbols
be within the same context of the display, but a disclaimer should be posted
indicating that the display is privately-sponsored. Religious Christmas songs
may be sung in public schools so long as secular Christmas songs are interspersed
throughout the presentation.
some public officials mistakenly believe that censoring religion from the
public square is the safest approach. City officials have removed nativity
scenes under the mistaken belief that the display of religious symbols is
unconstitutional. School principals have prohibited the singing of religious
carols under the same misguided belief. However, rather than avoiding a constitutional
violation by removing religion, these officials actually create a constitutional
violation by censoring religion. Indeed, the display of religious symbols
on public property and the singing of religious Christmas carols in public
schools are protected by the constitutional guarantee to freedom of speech
and freedom of religion. Censoring religion violates the core of our constitutional
Lemon v. Kurtzman, 403 U.S. 602 (1971); County of Allegheny v. American
Civil Liberties Union, 492 U.S. 573 (1989).
See Capitol Square Review and Advisory Board v. Pinette, 115 S. Ct.
2440 (1995); Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc).
A disclaimer on a privately-sponsored nativity scene on public property is
not necessary but may be helpful to alert the public that the display is in
Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir.),
cert denied, 449 U.S. 987 (1980).
a more in-depth analysis regarding religious symbols and Christmas carols,
see Faith and Freedom by Mathew
Information contained herein in not intended to render legal advice. Factual
and legal issues may arise that must be considered in each circumstance. If
legal advice is necessary, the services of a competent attorney should be