The authors of the First Amendment drafted the Establishment Clause to address the problem of government sponsorship and support of religious activity. Any private citizen can put up a nativity scene on private property at Christmas time: citizens and churches commonly exercise their First Amendment right to freedom of speech to do so. But when a government sets up a similar display on public property, a different aspect of the amendment comes into play. Governments do not enjoy freedom of speech, but, instead, are controlled by the second half of the First Amendment—the Establishment Clause, which forbids any official establishment of religion.
The Supreme Court has defined the meaning of the Establishment Clause in cases dealing with public financial assistance to church-related institutions (which the current Supreme Court has seeming forgot), primarily parochial schools, and religious practices in the public schools. The Court has developed a three-pronged test to determine whether a statute violates the Establishment Clause. According to that test, a statute is valid if it has a secular purpose; its primary effect neither advances nor inhibits religion; and it is not excessively entangled with religion. Because this three-pronged test was established in Lemon v. Kurtzman, 403 U.S. 602 (1971), it has come to be known as the Lemon test. Although the Supreme Court adhered to the Lemon test for several decades, it has been slowly moving away from that test without having expressly rejected it.
In 1984 in a case involving a Christmas display owned and erected by the City of Pawtucket, Rhode Island, in a private park. The display included both a life-sized nativity scene with the infant Jesus, Mary, and Joseph and secular symbols such as Santa Claus’s house, sleigh, and a plastic reindeer, among other secular items. Pawtucket residents successfully sued for removal of the nativity scene in federal district court, where it was found to have failed all three prongs of the Lemon test. Donnelly v. Lynch, 525 F. Supp. 1150 (D.R.I. 1981). The decision was upheld on appeal, but, surprisingly, in Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court narrowly reversed in a 5–4 vote and found the entire display constitutional. In the minds of the Court’s majority, in the context of the other items displayed, the crib served the legitimate secular purpose of symbolically depicting the historical origins of the Christmas holiday.
The emphasis on context became even more pronounced in a 1989 case, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). In Allegheny, a Pennsylvania county appealed a lower court ruling that had banned its two separate holiday displays: a crib situated next to poinsettia plants inside the county courthouse, and an eighteen-foot menorah (a commemorative candelabrum in the Jewish faith) standing next to a Christmas tree and a sign outside a city-county office building. The Court deemed the crib an unconstitutional endorsement of religion for two reasons. First, the presence of a few flowers around the crib did not mediate its religious symbolism in the way that the secular symbols had done for the crib in Lynch. Second, the prominent location doomed the display. By choosing the courthouse, a vital center of government, the Court said the county has sent "an unmistakable message" that it endorsed Christianity. In so holding, the Court did however that:
Celebrating Christmas as a religious, as opposed to secular, holiday, necessarily entails professing, proclaiming, or believing that Jesus of Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the government celebrates Christmas as a religious holiday (for example, by issuing an official proclamation saying: ―We rejoice in the glory of Christ's birth!‖), it means that the government really is declaring Jesus to be the Messiah, a specifically Christian belief. In contrast, confining the government's own celebration of Christmas to the holiday's secular aspects does not favor the religious beliefs of non-Christians over that of Christians. Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to Christian beliefs, an allegiance that would truly favor Christians over non-Christians. 492 U.S. at 611–12
The menorah passed constitutional review. Like the crib in Lynch, its religious significance was transformed by the presence of secular symbols: the forty-five-foot Christmas tree.
Perhaps the general judicial attitude in this type of case was best stated by District Judge Dlott in Ganulin v. US, 71 F.Supp.2d 824 (SD Ohio 1999):
WHATEVER THE REASON CONSTITUTIONAL OR OTHER CHRISTMAS IS NOT AN ACT OF BIG BROTHER!
CHRISTMAS IS ABOUT JOY AND GIVING AND SHARING IT IS ABOUT THE CHILD
WITHIN U.S. IT IS MOSTLY ABOUT CARING!
ONE IS NEVER JAILED FOR NOT HAVING A TREE FOR NOT GOING TO CHURCH FOR NOTSPREADING GLEE!
THE COURT WILL UPHOLD SEEMINGLY CONTRADICTORY CAUSES DECREEING
“THE ESTABLISHMENT” AND “SANTA” BOTH WORTHWHILE “CLAUS(es)!”
WE ARE ALL BETTER FOR SANTA THE EASTER BUNNY TOO AND MAYBE THE
GREAT PUMPKIN TO NAME JUST A FEW!
AN EXTRA DAY OFF IS HARDLY HIGH TREASON IT MAY BE SPENT AS YOU WISH
REGARDLESS OF REASON.
THE COURT HAVING READ THE LESSONS OF ―LYNCH REFUSES TO PLAY THE ROLE OF THE GRINCH
THERE IS ROOM IN THIS COUNTRY AND IN ALL OUR HEARTS TOO FOR DIFFERENT
CONVICTIONS AND A DAY OFF TOO!