• What You Need to Know About the Constitutionality of Municipal Holiday Displays
  • November 8, 2013 | Author: Jack J. Lah
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cincinnati Office
  • With a number of year-end holidays approaching, tis the season ... to start question whether your municipal holiday displays will prompt a lawsuit. Everyone is entitled to celebrate the holiday season according to his or her own personal religious beliefs. One of the treasures of our country is that Americans have always celebrated the holidays in a variety of entertaining and creative ways. Sometimes, however, those celebrations are hindered by the question of what is and is not permitted under the law, with an eye on the separation of "church" and "state".

    Municipalities have an obligation to properly manage the "public forum". The government has historically allowed individuals and organizations to use public property to erect holiday-themed displays. In general, there is nothing wrong with this. However, the legal scrutiny applicable to the message the government permits in the "public forum" depends on which of the three types of public property is being used:

    1. the traditional public forum;
    2. the open public forum; or
    3. the non-public forum.1

    Government properties such as streets, sidewalks and parks are presumed to be traditional public fora. When a traditional public forum is involved, the government must act in a "viewpoint-neutral" manner. Additionally, other areas that "the state has opened for use by the public as a place for expressive activity" are considered open fora. Such areas include, but are not limited to, government buildings, community centers and other state-owned facilities. When such property is involved, the government cannot prohibit religious speakers based upon the viewpoint of the speech unless the government demonstrates a "compelling government interest" for doing so.2

    Those who object to religious displays often rely upon the general allegation that the Constitution prevents any religious display. That's simply not true. The Free Exercise Clause and the Free Speech Clause do not require a municipality to exclude private religious speech from the public forum. In fact, a municipal policy of excluding private religious speakers from public places where other speakers are permitted is unconstitutional. The Establishment Clause only forbids government speech endorsing religion.3

    The government's display may include a religious component where that item is part of a larger holiday display in which there are a variety of secular symbols. In this regard, several aspects of a display are examined by the courts to determine whether the display violates the Constitution. As a general rule, so long as the religious elements of the display are part of a larger holiday expression, the display is constitutional. The rationale behind this rule is that the primary effect of the entire display is secular.4

    Also, the United States Supreme Court specifically stated that it is permissible for the government to display Christmas trees. Those trees would not have to be part of a larger holiday display which includes a variety of secular symbols.[5]

    We know that the law in this area is sometimes quite murky. It is difficult to strike the required balance between proper and improper actions during the holiday season. As a leading advisor to municipalities, we are here to help you with any questions you may have on this topic.
     
    1 Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37 (1983).
    2 Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 US 819, 888, 115 s.Ct. 2510 (1995).
    3 Capitol Square Review & Advisory Bd. V. Pinette, 515 U.S. 753 (1995).
    4 Lynch v. Donnelly, 465 U.S. 668 (1984); Salazar v. Buono, 130 S. Ct. 1803 (2010).
    5 Lynch, County of Allegheny v. ACLU, 492 U.S. 573 (1989).