Religion in Public Places
By Mathew D. Staver, Esq.

The relationship between religion and the United States Constitution is often misunderstood. Some have assumed that the Constitution requires total separation of the state and religion. However, according to the United States Supreme Court, "[t]otal separation is not possible in the absolute sense. Some relationship between government and religious organizations is inevitable."1

Though some have argued that there must be a wall of separation between church and state, the Supreme Court has stated that this so-called "wall" metaphor is not an "accurate description" of the relationship between church and state.2 Accordingly, the Supreme Court has stated that it "has never been thought either possible or desirable to enforce a regime of total separation...."3 The Constitution does not "require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."4 Anything less than mandating affirmative accommodation of religion would require "callous indifference," which the Constitution never intended.5

Total separation of church and state would actually result in hostility toward religion and would bring this country into "war with our national tradition as embodied in the First Amendment's guarantee of the free exercise of religion."6

A correct interpretation of the First Amendment must comport "with what history reveals was the contemporaneous understanding of its guarantees."7 The Supreme Court recognizes "that religion has been closely identified with our history and our government."8 The history of this country "is inseparable from the history of religion."9 History clearly indicates that "[w]e are a religious people whose institutions presuppose a Supreme Being."10

Clearly, the First Amendment requires that the state affirmatively accommodate religion and prevents the state from showing hostility toward any religion. Examples of accommodation of religion throughout history include legislation providing for paid chaplains for the House and Senate adopted by the First Congress in 1789 when the First Amendment was framed,11 national days of thanksgiving,12 Executive Orders proclaiming Christmas and Thanksgiving as national holidays,13 the national motto "In God We Trust,"14 the term "one nation under God" as part of the pledge of allegiance,15 art galleries supported by public revenues displaying religious paintings of the 15th and 16th centuries including the National Gallery in Washington maintained by government support exhibiting masterpieces with religious messages such as the Last Supper and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, along with many other explicit Christian themes,16 and the inscription of Moses with the Ten Commandments etched in stone in the Supreme Court of the United States of America.17 These are just a few of many examples.

Clearly, "our history is pervaded by expressions of religious beliefs."18 Consequently, government would do well to "respect the religious nature of our people."19

NATIVITY SCENES

Some have the mistaken idea that nativity scenes on public property or maintained by public facilities are unconstitutional. This is clearly not the law as enunciated by the United States Supreme Court. In the famous case of Lynch v. Donnelly,20 the United States Supreme Court ruled that the City of Pawtucket, Rhode Island, could continue to display its nativity scene, which it had done for the previous forty years.

When considering the constitutionality of the nativity scene, the Court addressed the following three questions: (a) whether the display had a secular purpose; (b) whether the display had the primary effect of advancing religion; and (c) whether the display fostered excessive governmental entanglement.

A. Whether There is a Secular Purpose

In addressing this first question, the Court stated that focus must be on the entire Christmas display, not simply on the nativity scene (creche) as separated from the context of the Christmas display. Also, it is important to note that there must only be a secular purpose. There certainly may be a religious purpose in parts of the display, but when looking at the display in its entirety, if a secular aspect does exist, then there would be a secular purpose. Thus, a nativity scene by itself may only have a religious purpose, but when placed in the context of the Christmas holiday season and in the context of other secular symbols of Christmas such as Santa Claus and a Christmas tree, the entire display may be said to have at least a secular purpose. In fact, the Supreme Court stated that the display was sponsored by the city "to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes."21

B. Whether the Primary Effect is to Advance Religion

Again, in looking at this question, the issue is whether the primary effect is to advance religion by the entire context of the display. Though certainly the nativity scene by itself may be said to advance religion, when viewed in the entire context of the surrounding secular symbols, it cannot be said that the primary purpose is to advance religion. In making this decision, the Lynch Court cited other examples of governmental aid of religion which did not have the primary effect of advancing religion, namely expenditures of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools,22 expenditure of public funds for transportation of students to church-sponsored schools,23 Federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education,24 non-categorical grants to church-sponsored colleges and universities,25 tax-exemptions for church properties,26 Sunday Closing Laws,27 release time programs for religious training during public school hours,28 and legislative prayers.29 Since the Supreme Court has in the past found all of these activities to be consistent with the Constitution, the mere display of a nativity scene within a Christmas display provides no greater aid to religion and clearly would not violate the Constitution. In fact, the Court noted that not every law which confers an indirect, remote, or incidental benefit upon religion is for that reason alone, constitutionally invalid.30

The Supreme Court in Lynch specifically noted that the "display of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday as `Christ's Mass,' or the exhibition of literally hundreds of religious paintings in governmentally-sponsored museums."31

C. Whether There is Excessive Governmental Entanglement

In displaying a nativity scene during the Christmas season, the Lynch Court found that there was no excessive governmental entanglement because there was no excessive administrative entanglement between the state and church authorities concerning the content or design of the exhibit, and any money that was expended toward the display of the nativity scene was minimal. In fact, the display required far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries.32

In summary, a nativity scene may be displayed upon public property or sponsored by a public entity when that nativity scene is placed in the context of the Christmas holidays and in the context of other secular celebrations of Christmas such as Santa Claus and a Christmas tree.33

SYMBOLS, MUSIC, ART, DRAMA, AND LITERATURE

The same principles as outlined for nativity scenes are applicable to symbols, music, art, drama, or literature, whether in public school or in association with other public entities.

Probably the best illustration of the permissibility for the use of symbols, music, art, drama, and literature within the public school system is the School Board policy of Sioux Falls School District in Sioux Falls, South Dakota. The school policy begins by stating that tolerance and understanding should be promoted, and that "students and staff members should be excused from participating in practices which are contrary to their religious beliefs" unless there are clear issues of overriding concern that would prevent excusal.34

The policy goes on to state the following:

1. The several holidays throughout the year which have a religious and secular basis may be observed in the public schools.

2. The historical and contemporary values and the origin of religious holidays may be explained in an unbiased and objective manner without sectarian indoctrination.

3. Music, art, drama, and literature having religious themes or basis are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.

4. The use of religious symbols such as a cross, menorah, crescent, Star of David, creche, symbols of Native American religions, or other symbols that are part of a religious holiday are permitted as a teaching aid or resource provided such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hanukkah, St. Valentine's Day, St. Patrick's Day, Thanksgiving and Halloween.

5. The school district's calendar should be prepared so as to minimize conflicts with religious holidays of all faiths.35

The same school board policy also correctly addresses religious literature in the curriculum as follows:

Religious institutions and orientations are central to human experience, past and present. An education excluding such a significant aspect would be incomplete. It is essential that the teaching about and not of religion be conducted in a factual, objective and respectful manner.36

The policy then goes on to outline the following:

1. The District supports the inclusion of religious literature, music, drama, and the arts in the curriculum and in school activities provided it is intrinsic to the learning experience in the various fields of study and is presented objectively.

2. The emphasis on religious themes in the arts, literature and history should be only as extensive as necessary for a balanced and comprehensive study of these areas. Such studies should never foster any particular religious tenets or demean any religious beliefs.

3. Student initiated expressions to questions or assignments which reflect their beliefs or non-beliefs about a religious theme shall be accommodated. For example, students are free to express religious belief or non-belief in compositions, art forms, music, speech and debate.37

The above cited school board policy of the Sioux Falls School District is presented here because it concisely and correctly outlines the parameters for the celebration of religious holidays, the display of symbols, the performance of music or drama, and the study of religious literature within the public school system and in association with public entities. The constitutionality of this school board policy was upheld by the Eighth Circuit Court of Appeal. As for the issue of music, the United States Supreme Court has acknowl edged that "[m]usic without sacred music, architecture minus the Cathedral, or painting without the Scriptural themes would be eccentric and incomplete, even from a secular view."38 As it pertains to religious literature within the public school system, the United States Supreme Court declared that the "study of the Bible or of religion, when presented objectively as a part of a secular program of education, is consistent with the First Amendment."39 Indeed, the Supreme Court has reiterated that "the Bible may constitutionally be used as an appropriate study of history, civilization, ethics, comparative religion, or the like."40 In other words, a public school teacher may teach about religion in an objective manner, but should avoid promoting belief in a particular religion and should likewise avoid degrading or showing hostility toward any religion.

In summary, religious symbols, music, art, drama, and literature may clearly be taught and presented in the public school system and in association with other public entities so long as the presentation is done in a prudent and objective manner consistent with the topic or the holiday occasion. Contrary to some popular opinion, religious Christmas carols are still permitted in the public school, religious art, drama and literature are still permitted as part of the curriculum, and religious symbols are still permissible. The key is to present the information, display or performance objectively and in combination with other secular aspects surrounding the holiday or subject matter. To exclude religion from the public school system or from other public entities is to show nothing less than hostility toward religion, and clearly, the First Amendment demands accommodation and absolutely forbids hostility.

INDEX OF CITATIONS

1 Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

2 Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

3 Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973).

4 Lynch, 465 U.S. at 673; See e.g., Zorach v. Clauson, 343 U.S. 306, 314 (1952); Illinois ex rel. McCullom v. Board of Education, 333 U.S. 203, 211 (1948).

5 Zorach, 343 U.S. at 314; Lynch, 465 U.S. at 673.

6 McCullom, 333 U.S. at 211-212.

7 Lynch, 465 U.S. at 673.

8 Abington School Dist. v. Schempp, 374 U.S. 203, 212 (1963).

9 Engel v. Vitale, 370 U.S. 421, 434 (1962).

10 Zorach, 343 U.S. at 313.

11 Lynch, 465 U.S. at 674.

12 Id. at 675.

13 Id. at 676.

14 36 U.S.C. §186. The national motto was also mandated for currency. 31 U.S.C. §5112(d)(1).

15 Lynch, 465 U.S. at 676.

16 Id. at 677. The National Gallery regularly exhibits more than 200 similar religious paintings. Id. at 677 fn. 4.

17 Id. at 677.

18 Id.

19 Zorach, 343 U.S. at 314; Lynch, 465 U.S. at 678.

20 465 U.S. 668 (1984).

21 Lynch, 465 U.S. at 681.

22 Board of Education v. Allen, 392 U.S. 236, 244, (1968).

23 Everson v. Board of Education, 330 U.S. 1, 17 (1947).

24 Tilton v. Richardson, 403 U.S. 672 (1971).

25 Roemer v. Board of Public Works, 426 U.S. 736 (1976).

26 Walz v. Tax Commissioner, 397 U.S. 664 (1970).

27 McGowan v. Maryland, 366 U.S. 420 (1961).

28 Zorach, 343 U.S. at 306.

29 Marsh v. Chambers, 463 U.S. 783 (1983).

30 Lynch, 465 U.S. at 683, citing Nyquist, 413 U.S. at 771.

31 Lynch, 465 U.S. at 683.

32 Id. at 684.

33 According to the Supreme Court in County of Allegheny v. American Civil Liberties Union, 109 S.Ct. 3086, 3103 (1989), "The government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." In County of Allegheny, the Court ruled that the nativity scene was unconstitutional because it was placed at the prominent entrance of City Hall, separated from the other secular symbols of Christmas. However, the Jewish menorah was constitutional because it was placed in the context of a Christmas tree. The principal to be learned from this case is that for a nativity scene to be constitutional, it must be placed within the context of other secular symbols of Christmas such as Santa Claus or a Christmas tree.

34 Florey v. Sioux Falls School District, 49-5, 619 F.2d 1311, 1319 (8th Cir.) , cert. denied 449 U.S. 987 (1980).

35 Id. at 1319-20.

36 Id. at 1320.

37 Id.

38 McCollum, 333 U.S. at 206 (Jackson, J., concurring).

39 Abington Township, 374 U.S.at 225.

40 Stone v. Graham, 449 U.S. 39, 42 (1980). The Supreme Court in Stone struck down the display of the Ten Commandments on a classroom bulletin board because, standing alone in the absence of a secular context, it was not "integrated into the school curriculum, where the Bible may constitutionally be used as an appropriate study of history, civilization, ethics, comparative religion, or the like." Presumably, if the Ten Commandments were displayed on the bulletin board in association with other secular symbols of law-based society, the Supreme Court may well have ruled the display to be constitutional.

The 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 sought.