in Public Places
By Mathew D. Staver, Esq.
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
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
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
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
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.
"our history is pervaded by expressions of religious beliefs."18
Consequently, government would do well to "respect the religious nature
of our people."19
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.
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.
Whether There is a Secular Purpose
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
Whether the Primary Effect is to Advance Religion
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
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
Whether There is Excessive Governmental Entanglement
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
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
MUSIC, ART, DRAMA, AND LITERATURE
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.
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
policy goes on to state the following:
The several holidays throughout the year which have a religious and secular
basis may be observed in the public schools.
The historical and contemporary values and the origin of religious holidays
may be explained in an unbiased and objective manner without sectarian indoctrination.
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.
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.
The school district's calendar should be prepared so as to minimize conflicts
with religious holidays of all faiths.35
same school board policy also correctly addresses religious literature in
the curriculum as follows:
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
policy then goes on to outline the following:
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
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.
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
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.
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.
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
Committee for Public Education & Religious Liberty v. Nyquist,
413 U.S. 756, 760 (1973).
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).
Zorach, 343 U.S. at 314; Lynch, 465 U.S. at 673.
McCullom, 333 U.S. at 211-212.
Lynch, 465 U.S. at 673.
Abington School Dist. v. Schempp, 374 U.S. 203, 212 (1963).
Engel v. Vitale, 370 U.S. 421, 434 (1962).
Zorach, 343 U.S. at 313.
Lynch, 465 U.S. at 674.
Id. at 675.
Id. at 676.
36 U.S.C. §186. The national motto was also mandated for currency. 31 U.S.C.
Lynch, 465 U.S. at 676.
Id. at 677. The National Gallery regularly exhibits more than 200 similar
religious paintings. Id. at 677 fn. 4.
Id. at 677.
Zorach, 343 U.S. at 314; Lynch, 465 U.S. at 678.
465 U.S. 668 (1984).
Lynch, 465 U.S. at 681.
Board of Education v. Allen, 392 U.S. 236, 244, (1968).
Everson v. Board of Education, 330 U.S. 1, 17 (1947).
Tilton v. Richardson, 403 U.S. 672 (1971).
Roemer v. Board of Public Works, 426 U.S. 736 (1976).
Walz v. Tax Commissioner, 397 U.S. 664 (1970).
McGowan v. Maryland, 366 U.S. 420 (1961).
Zorach, 343 U.S. at 306.
Marsh v. Chambers, 463 U.S. 783 (1983).
Lynch, 465 U.S. at 683, citing Nyquist, 413 U.S. at 771.
Lynch, 465 U.S. at 683.
Id. at 684.
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.
Florey v. Sioux Falls School District, 49-5, 619 F.2d 1311, 1319 (8th
Cir.) , cert. denied 449 U.S. 987 (1980).
Id. at 1319-20.
Id. at 1320.
McCollum, 333 U.S. at 206 (Jackson, J., concurring).
Abington Township, 374 U.S.at 225.
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.
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