Stephen Young is a reference librarian at The Catholic University of America, Kathryn J. DuFour Law Library. Stephen has written extensively in the area of United Kingdom law, however in recognition of the holiday season he offers this lighthearted guide to the literature concerning the Supreme Court’s analysis of the Establishment Clause as it relates to the Christmas holiday.

“Now if this court rules against Santa Claus, they will have to judge which is worse.
A lie that draws a smile, or a truth that draws a tear.”

Miracle on 34th Street (1994)

Introduction

At the climax of the movie Miracle on 34th Street (originally released in 1947 and later remade in 1994) the court, described in the movie as the New York Supreme Court (presumably the 1st Judicial District), is given no choice but to recognize the existence of Santa Claus when the United States Postal Service delivers countless sacks of mail to the defendant, each handwritten letter addressed to Santa Claus. This emotionally charged scene never fails to bring a tear to the eye of every sentimental film buff and legal researcher.

However, the United States Supreme Court’s encounters with the Christmas holiday have so far not included the official recognition of Santa Claus (this is apparently now the responsibility of NORAD), and have also failed to recreate the same emotionally charged scene. Instead, the Court’s decisions have focused on the public display of symbols of the holiday season and whether they are in violation of the Establishment Clause (Amendment 1) of the United States Constitution.(A high resolution, and therefore slow to load image of the original document is available from the National Archives website.) Over the years the Court has rendered a number of “Christmas” opinions, which while devoid of the sentiment one might associate with the holidays, nonetheless constitute an important body of law. This guide will briefly outline the origins of Christmas and the ways in which the Supreme Court of the United States has encountered the holiday.

The History of Christmas

The feast of Christmas, the Christian celebration of the birth of Christ, has been in existence since at least 336 AD when it was first recorded in the Roman Depositio Martyrum (354), one of the earliest lists of martyrs and feasts. The English word “Christmas” is derived from the Old English term Cristes Maesse, which literally means the mass of Christ. Although there is no definitive explanation for why December 25th was chosen for this Christian festival, one theory has been posited that is worthy of consideration; the festival was assigned the date of the winter solstice (December 25 in the Julian calendar and January 6 in the Egyptian calendar), the day when the pagan followers of Mithra celebrated the birthday of the invincible sun and witnessed the return of the sun to northern skies. This also coincided with the Roman celebration of Saturnalia, a time of festivity and gift exchanging. The Bible provides no indication of the day or month of the birth of Christ, and only the Gospel according to Luke provides enough of a context to even guess at the year (generally regarded as being 6-8 AD).

The symbols that we now associate with the holiday, such as the Christmas tree, and carol singing, have been adopted by western cultures over a number of centuries. The Christmas tree originated in medieval central Europe as the Paradise Tree, a representation of the Garden of Eden in a popular play depicting Adam and Eve. Traditionally the tree was adorned with apples on December 24th and was often set up inside a church or home. The Christmas tree became popular throughout Western Europe and North America during the 19th century. Although most of today’s popular Christmas carols have only existed since the 19th century, the tradition of the Christmas carol or hymn dates back to the 5th century.

The recognition of Christmas as a federal holiday by the Congress of the United States began in 1870 with an act authorizing “the twenty-fifth day of December, commonly called Christmas Day” as a holiday within the District of Columbia (Act of June 28, 1870, ch. 167, 16 Stat 168). An 1885 joint resolution of Congress further authorized employees of various government departments to take the twenty-fifth of December as a holiday (J.Res. of January 6, 1885, No. 5, 23 Stat 516). Beginning in 1894, Congress enumerated all the public holidays, including Christmas, with the passage of 28 Stat 96, now codified at 5 USC 6103.

The Supreme Court of the United States

For almost the first two hundred years of its existence the Supreme Court did not address the issue of Christmas. A recent search through Supreme Court opinions revealed that there were no relevant references to Christmas prior to 1945. Following World War II and the erosion of Christian hegemony the court was brought more and more into the enforcement of the Establishment Clause of the First Amendment of the Constitution, and in so doing it was forced to grapple with one of the most sensitive and difficult issues the Court has had to confront; whether or not the celebration of Christmas is a religious or secular event. A search of post-1945 Supreme Court cases revealed relevant references in at least a dozen cases. The following cases highlight the Supreme Court’s attempt to clarify the law regarding the constitutionality of religious symbols during the Christian celebration of Christmas.

Lynch v. Donnelly, 465 US 668 (1984)

Of all the “Christmas” cases this is arguably the most important, not for what it achieved but rather for what it failed to achieve. At issue was whether the city of Pawtucket, Rhode Island was in violation of the Establishment Clause of the United States Constitution. Each year the city erected a seasonal display described by the Court as essentially like those to be found in hundreds of towns or cities across the Nation – often on public grounds – during the Christmas season. The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads “SEASONS GREETINGS,” and the crèche at issue here.

The Supreme Court, in a 5-4 decision, held that the display was constitutional, but in so doing it offered a confusing and ultimately ineffective application of the three-prong “Lemon test.”

The Lemon test, first articulated by the Court in 1971 in Lemon v. Kurtzman, had become the predominant standard in determining Establishment Clause cases. The test had three elements: whether the statute has a secular purpose; whether the principle or primary effect of the statute advances or inhibits religion; and last, whether the statute fosters “an excessive government entanglement with religion.” In applying the test the Court repeatedly placed the actions of the city in the context of history and placed the religious symbols within the context of the secular symbols (the “plastic reindeer rule”). In concurring with the majority Justice O’Connor presented an alternative test, the two-prong endorsement test. This test, a “clarification of our Establishment Clause doctrine,” combined the purpose and effect prongs of the Lemon test and placed a strong emphasis on the message the symbol sent (i.e., was it an endorsement or disapproval of a religion). The Court reasoned that in the context of history the crèche was merely a symbol of a traditional holiday and was therefore no different from secular symbols recognizing the holiday.

Following the Supreme Court’s decision in Lynch a number of lower courts were thrown into confusion when they were presented with similar issues. A most notable example of this was ACLU v. City of Birmingham, 791 F.2d 1561 (1986), in which the 6th Circuit applied the endorsement test and determined that since the city, not a religious group owned the crèche it could be displayed. This case was appealed to the Supreme Court where cert. was denied, 479 US 939 (1986). However it would not be long before the ACLU was once again involved in a Christmas case before the Supreme Court.

County of Allegheny v. American Civil Liberties Union, 492 US 573 (1989)

In this 1989 decision (which includes the companion case City of Pittsburgh v. American Civil Liberties Union) the Supreme Court was once again faced with the issue of whether a government sponsored Christmas scene was in violation of the Establishment Clause of the Constitution. The Court held that a solitary crèche adorned with a banner proclaiming “Gloria in Excelsis Deo” placed in a courthouse was in violation of the First Amendment’s Establishment Clause, however an eighteen foot menorah and forty-five foot Christmas tree together with a sign saluting “liberty” displayed outside a government building were permissible. In reaching its decision the Court used both the Lemon test and the now established endorsement test advocated by Justice O’Connor in Lynch. The Court also placed considerable emphasis on the context (historical, seasonal and physical) in which these symbols were placed.

In rendering their decisions in Lynch, Allegheny and Pittsburgh the majority reasoned that the crèche in Lynch and the menorah in Pittsburgh were placed in an overwhelmingly secular context, while the crèche in Allegheny symbolized a religious Christmas since it was not “diluted” with other secular symbols (the “plastic reindeer rule”).

Kaplan v. City of Burlington , 496 US 926 (1990)

On appeal from the Second Circuit Court of Appeals (891 F.2d 1024) this case was denied cert. by the Supreme Court. At issue in this case was the placement in a city park by Burlington city officials of a solitary menorah during Chanukah. The lack of additional secular symbols combined with the clearly religious symbolism of the menorah resulted in the Court of Appeals declaring this a violation of the Establishment Clause. In making their decision the Court relied heavily on Allegheny and determined that the menorah in Kaplan was more like the crèche than the menorah in Allegheny.

ACLU v. Schundler , 520 US 1265 (1997)

On appeal from the Third Circuit Court of Appeals (104 F.3d 1435) this case was denied cert. by the Supreme Court. In response to a permanent injunction brought against Jersey City’s display of a menorah and crèche, the city officials added a wooden sled and figures depicting Santa Claus and Frosty the Snowman to the display. This attempt to secularize the display resulted in a modification to the District Court’s injunction, however the Third Circuit ruled that these attempts did little to alter the religious statement being made by the city. Further, the Third Circuit held that erecting and maintaining religious displays on government property was a clear violation of the Establishment Clause. It is clear that in their decision the Court of Appeals was trying to establish a stronger holiday display rule than the Supreme Court has so far been willing to do.

Ganulin v. United States , 532 US 973 (2001)

On appeal from the Southern District of Ohio (71 F.Supp 2d 824) and the Sixth Circuit Court of Appeals (unpublished), this case was denied cert. by the Supreme Court in the October 2001 term. At issue in this case was whether the federal government holiday of Christmas was in violation of the Establishment Clause of the Constitution. Richard Ganulin, an attorney with the city of Cincinnati, argued that by making Christmas Day a federal holiday Congress was in effect providing an ideological and financial subsidy for the Christian celebration of the birth of Christ. Both the District and Circuit courts upheld the constitutionality of the federal holiday. A copy of the respondent’s brief in opposition, filed with the Supreme Court, is available on the Becket Fund for Religious Liberty website.

Chabad of Southern Ohio v. Cincinnati , 537 US _ (2002)

On application to vacate stay from the Court of Appeal for the Sixth Circuit. This very recent opinion in chambers by Justice Stevens allowed the Chabad of Southern Ohio to light an 18-foot menorah in the city’s downtown Fountain Square. The effect of this last minute appeal to the Supreme Court (Justice Stevens is the Circuit Justice) was to lift the Court of Appeals stay on the District Court’s injunction of the city’s ordinance restricting the use of the square for a seven-week period.

This week (12/16/02) the full Supreme Court reaffirmed Justice Steven’s opinion and rejected the city’s arguments that it should be allowed to stop all private groups from using the square during the holidays.

Journal Articles

There are a large number of articles written about the Supreme Court and its interpretation of the Establishment Clause. The following list comprises only those journal articles focusing either exclusively or primarily on the Supreme Court’s Christmas cases. Journal articles with a broader scope are not included in this list.

• 15 Touro Law Review 1053 (Spring, 1999). The Establishment Clause and Government Religious Displays: The Court that Stole Christmas. Jennifer H. Greenhalgh.
• 107 Yale Law Journal 1969 (1998). This Is Not A Crèche. Laura Ahn.
• 22 Hastings Constitutional Law Quarterly 29 ( Fall, 1994). Endorsement as “Adoptive Action:” A Suggested Definition of, and an Argument for, Justice O’Connor’s Endorsement Test. Joel S. Jacobs.
• 9 Journal of Law and Religion 211 (1991). County of Allegheny v. American Civil Liberties Union: Embracing the Endorsement Test. Steven A. Seidman.
• 41 DePaul Law Review 101 (1991). Government Participation in Holiday Religious Displays: Improving on Lynch and Allegheny. Bruce M. Zessar.
• 11 University of Bridgeport Law Review 727 (1991). Allegheny County v. American Civil Liberties Union – Permissible v. Impermissible Government Display of Religious Symbols: The Trend Toward a Perspective of Neutrality. Christine A. Atkinson.
• 35 Saint Louis University Law Journal 169 (Fall, 1990). A Survey of the Supreme Court’s Approach to the Establishment Clause in Light of County of Allegheny v. American Civil Liberties Union. Jeffrey R. Wagener.
• 26 Tulsa Law Journal 107 (Fall, 1990). A Conservative Struggles with Lemon: Justice Anthony M. Kennedy’s Dissent in Allegheny. Keith O. McArtor.
• 1 Maryland Journal of Contemporary Legal Issues 267 (Fall, 1990). County of Allegheny v. American Civil Liberties Union: Symbolic Analysis Under the Establishment Clause. David J. Roop, Jr.
• 40 American University Law Review 503 (Fall, 1990). County of Allegheny v. American Civil Liberties Union: Evolution of Chaos in Establishment Clause Analysis. Shahin Rezai.
• 43 Oklahoma Law Review 375 (Summer, 1990). Constitutional Law: Religious Displays on Government Property: Where Do We Stand? Dawn Brewer.
• 21 University of Toledo Law Review 933 (Summer, 1990). County of Allegheny v. American Civil Liberties Union: Perpetuating the Setting Factor. Matthew P. Kammerer.
• 28 Duquesne Law Review 445 (Spring, 1990). Beyond the “Plastic Reindeer Rule:” The Curious Case of County of Allegheny v. American Civil Liberties Union. George M. Janocsko.
• 24 Suffolk University Law Review 263 (Spring, 1990). Constitutional Law – The Updated Lemon Test as Applied to Religious Displays – County of Allegheny v. American Civil Liberties Union, 109 S. CT. 3086 (1989). Michael T. Caljouw.
• 25 New England Law Review 523 (Winter, 1990). County of Allegheny v. American Civil Liberties Union: How the Bench Stole Christmas. Richard A. Lacroix.
• 13 Harvard Journal of Law and Public Policy 399 (Winter, 1990). Religious Displays and the First Amendment: County of Allegheny v. American Civil Liberties Union, 109 S.CT. 3086 (1989). Barbara S. Barrett.
• 68 North Carolina Law Review 590 (March, 1990). County of Allegheny v. American Civil Liberties Union: Justice O’Connor’s Endorsement Test. Christopher S. Nesbit.
• 65 Notre Dame Law Review 671 (1990). A Controversial Twist of Lemon: The Endorsement Test as the Establishment Clause Standard. James M. Lewis Michael L. Vild.
• 1990 Wisconsin Law Review 1597 (1990). Crèches, Christmas Trees and Menorahs: Weeds Growing in Roger Williams’ Garden. David M. Cobin.
• 20 Stetson Law Review 217 (Fall, 1990). Government, The Holiday Season, and the Establishment Clause: A Perspective on the Issues. Gregory J. Blackburn.
• 15 Journal of Contemporary Law 313 (1989). ACLU v. Allegheny County: No Room at the Inn, Courthouse, or City Hall. David Olshan.
• 103 Harvard Law Review 228 (November, 1989). The Supreme Court, 1988 Term: Government Sponsored Religious Displays. Note.
• 55 UMKC Law Review 665 (1987). Religious Displays: ACLU v. City of Birmingham. Establishment Clause Analysis of an Isolated Crèche since Lynch. Note.
• 1986 Brigham Young University Law Review 465 (1986). Lemon Reconstituted: Justice O’Connor’s Proposed Modifications of the Lemon Test for Establishment Clause Violations. W. Scott Simpson.
• 35 American University Law Review 477 (Winter, 1986). Of Crosses and Crèches: The Establishment Clause and Publicly Sponsored Displays of Religious Symbols.
• 1985 University of Illinois Law Review 837 (1985). The Nativity Scene Case: An Error of Judgment. Norman Dorsen.
• 12 Southern University Law Review 97 (Fall, 1985). Lynch v. Donnelly: The Rebirth of the Supreme Court’s Attitude Towards the Establishment Clause. James Best.
• 71 Cornell Law Review 185 (November, 1985). Lynch v. Donnelly: Breaking Down the Barriers to Religious Displays. Glenn S. Gordon.
• 63 North Carolina Law Review 782 (April, 1985). Lynch v. Donnelly: The Disappearing Wall. Harriet Grant.
• 98 Harvard Law Review 174 (November, 1984). The Supreme Court, 1983 Term: Government Sponsored Nativity Scenes. Note.
• 37 Vanderbilt Law Review 1175 (October, 1984). The Lemon Test Soured: The Supreme Court’s New Establishment Clause Analysis. Kenneth Mitchell Cox.
• 1984 Duke Law Journal 770 (September, 1984). Trends in the Supreme Court: Mr. Jefferson’s Crumbling Wall – a Comment on Lynch v. Donnelly. William Van Alstyne.
• 18 West’s Education Law Reporter 805 (1984). Lynch v. Donnelly: A New Constitutional Standard in Establishment Cases? Ralph D. Mawdsley.
• 37 Rutgers Law Review 103 (1984). Supreme Court Approval of Publicly Sponsored Nativity Scene Displays Establishes an Unholy Alliance Between Church and State. Note.
• 51 University of Cincinnati Law Review 353 (1982). Publicly Funded Display of Religious Symbols: The Nativity Scene Controversy. Note.

In addition to the above mentioned journal articles most texts and treatises on the subject of First Amendment rights, or law and religion include discussion of one or more of the Christmas cases. Two texts worth highlighting in this area are Steven Feldman’s Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (1997), and Albert Menendez’s The December Dilemma: Christmas in American Public Life (1988).

Christmas at the Court

In keeping with most federal agencies, the Supreme Court adheres to the federal legal holidays listed in 5 USC 6103, including Christmas day (see for example, Rules of the Supreme Court of the United States, Rule 1.3). During the holiday season the Court is decorated with the traditional secular symbols of Christmas, including wreaths and a Christmas tree, and the Court’s gift shop sells ornaments celebrating the holiday season. Even the cafeteria located inside the Supreme Court building recognizes the holiday season by serving festive dishes. The Court also hosts an annual holiday party in the Great Hall of the Supreme Court building. The party, referred to as the Christmas Party, includes carol singing led by the Chief Justice accompanied by a pianist. It should be noted that traditionally the Court is in recess during the weeks surrounding Christmas.

Conclusion

The euphoric courtroom scenes following Judge Harper’s decision in Miracle on 34th Street have so far not been replicated inside the U.S. Supreme Court building. While the Supreme Court has effectively settled the question of whether the federal government should recognize the Christmas holiday, it still appears to have left unsettled the question of how it should be recognized. The body of literature that has critiqued the Christmas cases may differ on many points but they do share one common theme; the Court has created confusion by placing a stronger emphasis on the context in which Christmas symbols are placed than on the symbols themselves. The three-prong Lemon test, the two-prong endorsement test, and the “plastic reindeer rule” have all failed to provide a coherent methodology for analyzing the Establishment Clause in the context of Christmas, and we are therefore left waiting for a miracle on 1st Street NE to help resolve this most seasonal of issues.