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The Supreme Court’s Plastic Reindeer Rule looms over the holiday season

December 10, 2014 by Scott Bomboy


As we head toward the end of 2014, there is a new batch of controversies over the use of religious symbols at public holiday displays – and the effect of the Supreme Court’s “reindeer rule.”


Wikicommons: Ardfern

For example, this holiday season, incoming Texas governor Gregg Abbott, who is the state’s attorney general, is siding with Cherokee County in a fight over the removal of a nativity scene from the county’s courthouse.


Abbott’s office will file briefs to support the county in its conflict with the American Humanist Association, which says the display is unconstitutional.


“The exclusively Christian standalone nativity scene displayed on the courthouse lawn amounts to a monument to Christianity that conveys the unmistakable message of governmental endorsement of religion, and Christianity specifically, in violation of the Establishment Clause of the First Amendment,” said Monica Miller, an attorney with the Appignani Humanist Legal Center.


In a statement, Abbott made a counterargument that the nativity scene wasn’t “standalone” and had other elements.


“Cherokee County is under no legal obligation to remove the nativity scene from the courthouse grounds. Should Cherokee County choose to continue its tradition of including a nativity scene within the County’s display this Christmas season, the Texas Attorney General’s Office stands ready to provide appropriate legal support,” he said.


Over in Arkansas, the Baxter County Courthouse has its own holiday display controversy. This year, the county augmented the display with the addition of Santa and some plastic reindeer. Last year, the Appignani Humanist Legal Center complained about what it called an “exclusively Christian display.”


The presence of secular or diverse elements in a holiday display is at the heart of the arguments, and it goes back to 1984, when the Supreme Court set its famous Plastic Reindeer Rule precedent.


The foundation for the rule comes from the Endorsement Test, an idea fostered by Justice Sandra Day O’Connor. The test states that in order for a government action to comply with the First Amendment’s Establishment Clause about religion, it can’t take actions that seem to endorse or disapprove of religion from the perspective of a reasonable observer.


The Establishment Clause is the critical part of the First Amendment that reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”


“Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,” O’Connor said.


The Endorsement Test came out of a Supreme Court case about Christmas that resulted in the Plastic Reindeer Rule.


In Lynch v. Donnelly from 1984, the Court was asked to consider if the First Amendment prohibited a municipality from including a creche, or Nativity scene, in its annual Christmas display. The holiday display in Pawtucket, Rhode Island, included the crèche along with other secular symbols such as a plastic reindeer, a Santa Claus house and a Christmas tree.


Chief Justice Warren Burger allowed the crèche to stay at the exhibit.


“If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution,” Burger said. “We are satisfied that the city has a secular purpose for including the creche, that the city has not impermissibly advanced religion, and that including the creche does not create excessive entanglement between religion and government.”


Court observers at the time saw the presence of the reindeer as broadening the purpose of the display.


A second holiday-related decision in 1989 clarified the Court’s position on crèches. In County of Allegheny v. American Civil Liberties Union, the Court said in a 5-4 decision that of two public-sponsored holiday displays in Pittsburgh, Pennsylvania, only one was permissible.


Inside a courthouse the county had set up a crèche with a banner that read “Glory to God for the birth of Jesus Christ.” It omitted a plastic reindeer, a Christmas tree or a Menorah. The Justices objected to that display.


A second display outside the Allegheny County courthouse featured a Menorah, a Christmas tree and a sign honoring Liberty. “We agree that the creche display has that unconstitutional effect, but reverse the Court of Appeals’ judgment regarding the menorah display,” said Justice Harry Blackmun.


The Endorsement Test advocated by Justice O’Connor in the Lynch case played a critical role in the Allegheny case.  And in her concurring Allegheny opinion, she stressed what she meant in Lynch.


“In my view, the central issue in Lynch was whether the city of Pawtucket had endorsed Christianity by displaying a creche as part of a larger exhibit of traditional secular symbols of the Christmas holiday season. In Lynch, I concluded that the city’s display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the crèche.”


After the rulings in Lynch and Allegheny, the Court has mostly stayed out of cases involving the holiday season. It declined to hear cases involving a Menorah displayed by itself at a city park; a Menorah and crèche combined with Frosty the Snowman and Santa Claus; an attempt to have Christmas decertified as a federal holiday; and efforts to allow Christmas music to be played over the intercom at public schools.


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