Are Nativity Scenes on Public Property Legal?

We have all heard the term "separation of church and state" since learning about the Establishment Clause in high school civics. But if church and state are supposed to be separate, why do we still see nativity scenes on government-owned property this time of year? Is this legal?

The answer is that there is no bright-line rule against nativity scenes — or any religious symbols, for that matter — on public property.​ Instead, a court would have to look at a nativity scene in the context of the entire display to decide if it violates the Establishment Clause or not.

What Does the Establishment Clause Tell Us?

The Establishment Clause, found in the Constitution's First Amendment, prohibits the government from making any law “respecting an establishment of religion." Consequently, it prohibits the government from:

• Establishing an official religion
• Favoring one religion over another
• Preferring religion over non-religion (or non-religion over religion)
• Advancing, promoting, or endorsing religion

One might think that a nativity scene at Christmastime clearly advances, promotes, or even endorses Christianity, but the Supreme Court has held that is not always the case.

Supreme Court Rulings on Nativity Scenes

There are two main Supreme Court cases that deal with the issue of nativity scenes on government-owned property, specifically.

First was Lynch v. Donnelly, decided in 1984. In that case, the court narrowly held that a Rhode Island nativity scene — part of an elaborate Christmas display including Santa, reindeer, and other decorations — did not violate the Establishment Clause.

The Court found that the display was erected to "celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday," which the Court held are "legitimate secular purposes."

The second case, Allegheny v. ACLU, gives additional insight. The decision came in 1989 and involved two different holiday displays: one in a prominent location inside the Allegheny County Courthouse, and the other outside the building.

The first display, which the Court found violated the Establishment Clause, included only a nativity scene and a religious message: “Gloria in Excelsis Deo." The Court took issue with the facts that the nativity scene stood alone, had an overtly religious message, and was on a main location inside of the government building.

The second display, which the Court found did not violate the Constitution, included a menorah, a Christmas tree, and a sign with a message about liberty and freedom. The Court reasoned that the display was "conveying the city's secular recognition of different traditions for celebrating the winter-holiday season."

Testing the Constitutionality of Christmas Displays

The two Supreme Court decisions led many to see the presence of a variety of holiday symbols — such as Santa, reindeer, menorahs, and Christmas trees — as the distinguishing factor in acceptable versus unacceptable holiday displays.

Since then, some local governments with penchants for holiday decorating have attempted to "secularize" Christmas displays by including additional holiday or religious symbols.

But the Court noted that a number of factors should be considered when determining if a holiday display violates the Establishment Clause, including:

• The type of public property the nativity scene located on — such as whether it is an important government building such as a city hall or courthouse
• Where on the government-owned property the nativity scene is located — such as  whether it is outside, by the entrance, or inanother area with high traffic
• Whether there are other, secular objects on display, or if the government appears to be endorsing one religion
• Whether religious sayings or messages are part of the display, or if the messaging is secular and inclusive

All of these factors can help determine if a nativity scene or another Christmas display is in violation of the Constitution, or an acceptable, secular celebration of the season.

Related Resources:

• Browse Civil Rights Lawyers (FindLaw's Lawyer Directory)
• Nativity Scene Lawsuits, 2018 Edition (FindLaw's Law and Daily Life Blog)
• Religious Discrimination (FindLaw's Learn About the Law Section)