November 29, 2007
Dear Editor:
As Christmas approaches and we all look forward to celebrating the holiday
season, many begin to wonder just what does the law say about religious
expression. I would like to offer some clarification about what is legally
acceptable seasonal religious expression in our community. Over the past few
years, it seems that misunderstandings of the origin and meaning of the phrase ?
separation of church and state? have encouraged a few 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 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. Courts have consistently ruled since then that
eliminating all signs of religion from the public square is just as unconstitutional
as establishing a religion. In response to recent efforts to censor Christmas
in our country, it might help to clarify the forms of religious expression
that are legal under the Constitution in 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 such as ?Merry Christmas?; through clothing that
conveys religious messages with words, colors, or symbols; or through written
materials like school assignments, religious cards, gifts, or tracts given to
teachers and classmates (Lovell v. City of Griffin, 303 U.S. 444 [1938];
Westfield High School L .I. F. E. Club v. City of Westfield, 249 F. Supp.2d 98 [D.
Mass. 2003].
2. At school, students can sing Christmas carols at concerts, teach 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 activities promote the ?advancement of the students? knowledge of
our society?s cultural and religious heritage; an opportunity for students to
perform a full range of music, poetry, and drama that is likely to be of
interest to the students and their audience,? any of these activities can be
conducted in public schools without creating an Establishment Clause problem
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. 2d1538 [1992]. Nor can private citizens be forced to include
objects such as snowmen in their faith-based displays (West Virginia v.
Burnette, 319 U. S. 624, [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 seculars objects are in a
close proximity to the religious ones, and 3) overall, the display is
sufficiently secular (Lynch v. Donnelly, 465 U.S. 668,671 [1984].
The U. S. Constitution, laws and court decisions are all constructed to
protect and permit religious expression in both public schools and government
buildings. Attempts to remove Christ from Christmas do not stem from the
Constitution, but from those who simply seek to silence the Christian message.
That very act is a violation of the Constitution.
Thank you for this opportunity to clarify the legal position on keeping
Christmas and many other forms of religious expression a vital part of our
heritage. Merry Christmas and Happy Holidays to each and every one of you, and my
best wishes for a joyous New Year.
Sincerely,
Joey Hensley, MD
State Representative