What has Changed Regarding Christmas Celebrations and Governmental Entities?

Little has changed since earlier appellate cases and one will note slight subjective language in the subsequent decisions. These cases have arisen using the Establishment Clause of the Constitution of the United States to back up the adverse claims of individuals or groups in what they perceive as being unconstitutional. There was an opinion from January of this year from the Public Buildings Service (PBS) of the General Services Administration (GSA) that was very interesting and is outlined below.

The Establishment Clause is a part of the First Amendment and reads, “Congress shall make no law respecting an establishment of religion,” followed by the Free Exercise Clause, which states, “or prohibiting the free exercise thereof”. The Establishment Clause is an oft-disputed issue, the Free Exercise Clause not so much. Until the Fourteenth Amendment was passed the United States Supreme Court considered the Establishment Clause as not applying to the states and local governments. It was not until 1940 that the Supreme Court held through the Fourteenth Amendment that the Establishment Clause applies to all levels of government. At the time of the formation of the country, six states had endorsed religious institutions so it seems that the eventual interpretive expansion to include governmental application at all levels was a move from the original intent. There have been additional arguments in school prayer cases where it has been argued that the use of certain religious rituals such as prayer in a state supported institution, such as a school, has an impression on the young and may create a peer pressure.

Since the 1980’s it has seemed that the typical way to present anything that has a religious component is to present it in a historical context along with secular symbols.

A Seventh Circuit case out of Indiana in 2015 was only decided three years ago, Freedom From Religion Foundation, Inc. v. Concord Community Schools, No. 17-1591 (7th Cir. 2018). For 45 years through 2014 the Christmas Spectacular was presented at Concord High School in Elkhart, Indiana. In 2015, the Christmas Spectacular was challenged as being impermissibly religious. The District Court enjoined the school from presenting its version even after altered from what was presented in 2014. The show uses about 600 students who function as actors, set designers/ builders, costume makers and it includes a live nativity scene. The school then presented a second modification removing more of the religious content such as New Testament readings. It also added songs celebrating Hanukkah, Kwanza and included more secular songs. The former nativity scene was greatly reduced to using mannequins and only a single religious song. The 7th Circuit decided that Concord’s changes from their 2014 Spectacular suggested to a reasonable person that the show was not just about Christianity even though the Plaintiffs continued to argue that point.

Even though it is understandable that parents do not want an influential activity that is adverse to the teachings of the parents to the child, it is unfortunate that a small minority of individuals in a community and outside organizations such as the Freedom from Religion Foundation can disrupt certain activities.

The teachings of parents to children and the beliefs of a majority within the community I am sure, continue to be held within the Concord Community Schools regardless of the disruption, even without the presented visualization of the nativity.

The opinion mentioned in the first paragraph came from Henry C. Whitaker the Principal Deputy Assistant Attorney General Office of Legal Counsel. This thirty-page opinion was very well done and looked at the history of the display of religious symbols in Federal buildings. The issues were whether the GSA could “expand its policy to permit the purchase of “religiously significant” decorations for display in federal buildings, or to permit federal employees to donate such decorations”. It was concluded that it could be done. Since 1987, “GAO has recognized that an agency may use appropriations otherwise generally available for building improvements to purchase seasonal decorations if the decorations are “consistent with work-related objectives and the agency mission” and are “not primarily for the personal convenience or personal satisfaction of a government employee.” Seasonal Decorations, 67 Comp. Gen. at 88. It seems that such decorations that make for a more pleasant working atmosphere and improve employee morale are allowed. I’m sure if an objecting employee was unhappy about the display then it would not be allowed. Further the opinion states, “[T]he determination must be made essentially on a case-by-case basis.”). Generally speaking, though, we believe that an agency will have discretion under the necessary-expense doctrine to permit the purchase of religiously significant seasonal decorations where it deems them to contribute to these purposes.”

The opinion further addresses an employee donation of religious display. “If an employee chooses to decorate a private workspace—such as in the employee’s personal office—it is doubtful that a fiscal law question would even arise. But if an employee-provided decoration substituted for a decoration that an agency might otherwise purchase with appropriated funds, then the private donation of such a decoration to an agency might be considered a gift. Although an agency may only accept gifts as authorized by statute, GSA, including PBS, has specific statutory authority to accept “on behalf of the Federal Government unconditional gifts of property in aid of any Religious Seasonal Decorations in Federal Government Buildings project or function within” its jurisdiction. 40 U.S.C. § 3175; see also 2 GAO, Principles of Federal Appropriations Law 6-222 to 6-224 (3d ed. 2006).” Finally stating, “This use of accepted gifts would be an exercise of GSA’s power to “operate, maintain, and protect” public buildings. 40 U.S.C. § 582(a). GSA may thus accept employee-donated property such as a menorah or crèche for public display in federal buildings under GSA’s jurisdiction.” In conclusion Mr. Whitaker stated, “GSA may, consistent with fiscal law and the First Amendment, broaden its policy governing the purchase and display of seasonal decorations in the public spaces of federal properties to allow for the display of religiously significant seasonal decorations that are reasonably calculated to improve employee morale. Religious seasonal displays fall within the traditions of our country and do not, without more, contravene the Establishment Clause. The PBS policy forbidding “religiously significant” 45 Op. O.L.C. __ (Jan. 15, 2021) displays is not required by the Establishment Clause. In certain applications, the PBS policy may raise questions under the Free Speech Clause, if it prohibited employees from displaying religious decorations in a government forum for private speech.”

I do hope that each of you have a blessed celebration of your faith, from myself a Merry Christmas because Jesus is the Reason for the Season.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."