Holiday Displays on Municipal Property

Training for: Legal Notes

(Reprinted from the November 2009 Maine Townsman Legal Notes)

Question: With the holidays approaching, what’s the law on permitting religious displays such as a nativity scene on municipal property?

Answer: This is a complicated and continually evolving question of constitutional law, but here’s a quick summary of current law (sans citations).

The key is that the First Amendment prohibits Congress (and by extension state and local government) from either promoting religion (the “Establishment Clause”) or interfering with the free exercise of religion (the “Free Exercise Clause”).

Thus, if a nativity scene or other religious display is publicly sponsored (i.e., sponsored by a governmental entity or erected at governmental expense), it is probably an unconstitutional endorsement or “establishment” of religion unless accompanied by traditional secular symbols of the holiday, such as a snowman, Santa Claus, or a banner reading “Season’s Greetings.” These secular symbols of the holidays should be positioned in close proximity to the religious display so that they are all in the same viewshed. This combination of publicly sponsored religious and secular symbols renders the scene a constitutional public celebration of a traditional holiday, not an unconstitutional government endorsement of a particular faith.

On the other hand, if a nativity scene or other religious display is privately sponsored (i.e., sponsored by a private entity or erected at private expense), it must be allowed on public property if that property is a “traditional public forum,” such as a park or commons, and the property is made available for secular displays. It is unconstitutional to limit the “free exercise” of religious expression in a public place where secular expression is permitted (again, such as a park or commons).

For a privately sponsored religious display on public property, there is no constitutional requirement that it be balanced with traditional secular symbols – it is not publicly sponsored, so it does not constitute government endorsement of religion. A privately sponsored display should include a prominent sign or banner identifying its sponsor, however. Also, any other sponsor of either a religious or secular display must be allowed to use the property on the same terms.

The foregoing is a general, un-nuanced overview of the law in a field more complex than this note lets on. Specific questions and circumstances should be reviewed by legal counsel.

For more on the First Amendment and the relationship between government and religion, see the feature article “Church and State,” Maine Townsman, October 2001. (By R.P.F.)

(Reprinted from the November 2009 Maine Townsman Legal Notes)

Question: With the holidays approaching, what’s the law on permitting religious displays such as a nativity scene on municipal property?

Answer: This is a complicated and continually evolving question of constitutional law, but here’s a quick summary of current law (sans citations).

The key is that the First Amendment prohibits Congress (and by extension state and local government) from either promoting religion (the “Establishment Clause”) or interfering with the free exercise of religion (the “Free Exercise Clause”).

Thus, if a nativity scene or other religious display is publicly sponsored (i.e., sponsored by a governmental entity or erected at governmental expense), it is probably an unconstitutional endorsement or “establishment” of religion unless accompanied by traditional secular symbols of the holiday, such as a snowman, Santa Claus, or a banner reading “Season’s Greetings.” These secular symbols of the holidays should be positioned in close proximity to the religious display so that they are all in the same viewshed. This combination of publicly sponsored religious and secular symbols renders the scene a constitutional public celebration of a traditional holiday, not an unconstitutional government endorsement of a particular faith.

On the other hand, if a nativity scene or other religious display is privately sponsored (i.e., sponsored by a private entity or erected at private expense), it must be allowed on public property if that property is a “traditional public forum,” such as a park or commons, and the property is made available for secular displays. It is unconstitutional to limit the “free exercise” of religious expression in a public place where secular expression is permitted (again, such as a park or commons).

For a privately sponsored religious display on public property, there is no constitutional requirement that it be balanced with traditional secular symbols – it is not publicly sponsored, so it does not constitute government endorsement of religion. A privately sponsored display should include a prominent sign or banner identifying its sponsor, however. Also, any other sponsor of either a religious or secular display must be allowed to use the property on the same terms.

The foregoing is a general, un-nuanced overview of the law in a field more complex than this note lets on. Specific questions and circumstances should be reviewed by legal counsel.

For more on the First Amendment and the relationship between government and religion, see the feature article “Church and State,” Maine Townsman, October 2001. (By R.P.F.)