Federal appeals court upholds nativity scene, citing memorial cross ruling
The 7th U.S. Circuit Court of Appeals this week held that the law has changed regarding how courts analyze whether a nativity scene on government land runs afoul of the First Amendment’s Establishment Clause.
In a 2-1 decision overturning a trial court ruling, the court ruled constitutional a Christmas display at the Jackson County, Indiana, courthouse that includes a Nativity scene alongside a Santa Claus, reindeer and other secular displays.
Traditionally, courts have applied the “Lemon” test to church-state disputes over government displays like nativity scenes. The Lemon test focuses on the purpose and effect of a display, asking in part whether a display conveys a message of religious endorsement by the government. But the majority here determined that the Supreme Court’s 2019 decision in the cross case requires them to ask instead whether the display in question fits within a long-standing historical tradition. The Jackson County display, the court held, passes that historical test and is thus constitutional.
Here is an excerpt from the opinion:
The historical analysis… convinces us that the nativity scene here is constitutional, insofar as it fits within a long national tradition of using the nativity scene in broader holiday displays to “depict[] the historical origins” of Christmas—a “traditional event long recognized as a National Holiday.” . . . [T]he government’s celebration of Christmas comports with a broader pattern of government recognition of public holidays, Christian and non-Christian alike. “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”
In a dissenting opinion, Judge Hamilton argued that the Jackson County display sends an unconstitutional message of government endorsement of religion because “religious content dominates the County’s display here.” The majority, he adds, “reads too much into American Legion [the cross case],” which he says should not be “understood as a revolution in Establishment Clause doctrine.”
Stymied by the task of formulating a bright-line doctrine in these cases, he says, lower courts should “focus less on theory and doctrine and more on facts.”
The facts and cases may be arrayed roughly along a spectrum ranging from stand-alone Nativity scenes to those that are small parts of much broader seasonal displays. There is not a sharp line. It’s not as simple as counting whether there are more shepherds and angels than elves and snowmen. But the broad principle against government endorsement of particular religions provides a workable standard. If the display is dominated by religious symbolism, with only minor or token secular symbols and symbols of other faiths, the message of endorsement calls for court intervention.
