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Christmas & Separation between Church & State
As Christmas approaches, I am greatly concerned about the
wide spread confusion over what is and is not acceptable
seasonal religious expression in our National, State, and
Local communities. Over the past few years, it seems that
grave misunderstandings of the origin and meaning of the
phrase “separation of church and state” have
encouraged many government officials to embark on a mission
to remove all references to religion from schools, government
buildings, and public property.
The phrase “separation of church and
state” doesn’t even appear in the Constitution!
It originated in 1802 in a private letter from Thomas Jefferson
to a group of Baptist ministers in Danbury, Connecticut – 13
years after the First Amendment was passed. And the courts
have consistently ruled since then that eliminating all
signs of religion from the public square is just as unconstitutional
as establishing a religion. So, in response to recent efforts
to censor Christmas in our National and State communities,
perhaps it would help to clarify the forms of religious
expression that are legal under the Constitution, even
under today’s confused case law.
1. Students are free to express their
religious beliefs in school. As long as it’s not
materially disruptive, students may express their beliefs
verbally
with phrases like “Merry Christmas”; through
clothing that coveys religious messages with words,
colors, or symbols; or through written materials like
school assignments,
religious cards, gifts, or tracts given to teachers or
classmates. (Lovell v. City of Griffin, 303 U.S. 444
(1938); see also Westfield High School L.I.F.E. Club
v. City of
Westfield, 249 F.Supp. 2nd 98 (D. Mass, 2003).
2. At school, students can sing Christmas carols at
concerts, learn the biblical origins of Christmas,
and perform the Christmas story of Mary, Joseph, Jesus,
and the shepherds. The Constitution does not require
the exclusion of religion from public institutions.
Christmas is part of our heritage and ingrained in
our culture; therefore, expression of it through art
and music and teaching of it as history serve both
a religious and secular purpose. Provided these activi-ties
promote the “advancement of the students’ knowledge
of our society’s cultural and religious heritage,
as well as the provision of an opportunity for students
to perform a full range of music, poetry, and drama
that is likely to be of interest to students and their
audience,” any of these activities can be conducted
in public schools without creating an Establishment
Clause problem (Florey v. Sioux Falls School District,
619 F.2d 1311 [6th Cir. 1980]; Stone v. Graham, 449
U.S. 39 [1980]).
3. Nativity displays can be placed in schools, parks,
and government buildings. No Supreme Court decision
has ever forbidden a private citizen from setting up
a nativity display in a public park, as parks, streets,
and sidewalks are all public forums traditionally devoted
to “assembly and debate.” Such displays
may also be placed in public buildings provided the
government has opened the property for expressive
activity. The Free Exercise Clause assures religious
speakers the same access to public forums given to
secular speakers (Americans United for Separation of
Church and State v. City of Grand Rapids, 980 F. 2nd
1538 [6th Cir. 1992]). Nor can private citizens be
forced to include nonreligious objects such as snowmen
in their faith-based displays (West Virginia v. Barnette,
319 U.S. 624, 642 [1943]).
Furthermore, even under current decisions,
city governments may include a nativity in a seasonal display
provided
(1) there are a sufficient number of secular objects
along with religious ones, (2) the secular objects
are in close proximity to the religious ones, and (3)
overall, the display is sufficiently secular (Lynch
v. Don-nelly, 465 U.S. 668, 671 [1984]).
The U.S. Constitution, laws, and court
decisions are all constructed to protect and permit religious
expres-sion in both public schools and government buildings.
So, attempts to remove Christ from Christmas do not stem
from the Constitution, but from those who simply seek to
silence the Christian message. And that – in my opinion
and the opinion of the numerous courts – is a violation
of the Constitution!
Thank you for this opportunity to clarify the legal
position on keeping Christmas a vital part of our heritage.
WRITTEN
BY:Gregory E. Wilhelm, J.D., M.A.ATTORNEY AT LAW
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