Dear Legal Mailbag:
Since I was little, I have been in love with the Christmas season, especially Christmas trees. Now that I am principal of a small elementary school with my own office, I can indulge in my affection for Christmas trees, or so I thought. Admittedly, I may have gone a little overboard in putting up not one but two Christmas trees in my office, but I was pleased that my office is so festive and welcoming during the Christmas season. Apparently, however, not everyone agrees.
Earlier this week, I received an email from one of the teachers in my building chastising me for my “insensitivity” and demanding that I take down the two Christmas trees in my office. The teacher purported to remind me that not everyone celebrates Christmas (as if I didn’t know) and to complain that “the blatant display of this symbol of Christianity by the leader of our school others non-Christian students and staff.” I had to Google “to other” as a verb, but now I understand the teacher’s point. I just don’t agree.
Is there some legal issue with my having two Christmas trees in my office? Would I be better off with just one?
Legal Mailbag defers to your judgment on whether you should have a Christmas tree (or two) in your office, though the teacher raises a valid question whether your doing so is inconsistent with your making all students feel welcome in your school. In considering this question, you may find comfort in the fact that our courts have ruled that a Christmas tree has become a secular symbol of the season, as described below, and thus displaying a Christmas tree (or two) in your office does not perforce convey support for Christianity in violation of the First Amendment.
In considering issues involving religious holidays and the schools, the (in)famous test announced by the United States Supreme Court in Lemon v. Kurtzman (U.S. 1971) is a good starting point. The Lemon test for whether actions by public officials conform to constitutional requirements involves three questions:
• Is there a secular purpose in the governmental action?
• Does the governmental action neither advance nor inhibit religion?
• Does the governmental action avoid excessive entanglement with religion?
When we can answer all three questions affirmatively, the governmental action passes the Lemon test and is considered constitutional.
To be sure, the United States Supreme Court has raised serious questions as to the continuing vitality of the Lemon test, most recently in American Legion v. American Humanist Association (U.S. 2017) (rejecting a First Amendment challenge to the display on public land of a forty-foot-tall Peace Cross in Bladensburg, Maryland). In Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), in dissent Justice Scalia famously commented on the Lemon test as follows:
As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys . . .
Despite the reservations over the Lemon test expressed by members of the Court, however, the lower courts have continued to apply the Lemon test in cases involving religion in the schools, and it provides a helpful analytical framework.
For example, in considering a challenge to a policy of the New York City Department of Education concerning religious displays in public schools, the Second Circuit Court of Appeals applied the Lemon test to rule that the policy permitting display of Christmas trees, a menorah, and a star and crescent was permissible. The court found that the policy had the secular purposes of celebrating holidays and promoting a greater understanding of religious and cultural differences. Moreover, the policy neither advanced nor inhibited religion, and it did not entangle the New York City schools with religion. Skoros v. City of New York, 437 F. 3d 1 (2d Cir. 2006), cert denied, 127 S. Ct. 1245 (2007).
Interestingly, in his opinion concurring in part and dissenting in part in the Skoros case, Judge Straub offers the following observations about Christmas trees: “A Christmas tree, however, is a purely secular symbol. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 616, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (‘The Christmas tree, unlike the menorah, is not itself a religious symbol.’); Laurence H. Tribe, American Constitutional Law § 14–15, at 1295 (2d ed.1988) (noting that history has ‘neutralized’ the Christmas tree, which was ‘once associated with the Tree of Life in the Garden of Eden’) [citations omitted].”
More generally, neutrality is key in such matters. The United States Supreme Court has never addressed the specific issue of holiday celebrations in the public schools. However, many years ago, the Eighth Circuit Court of Appeals decided the leading case on this subject, holding that the curriculum can include discussion of holidays having both religious and secular significance, and that the study of these holidays could include religious symbols and religious music “in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.” Florey v. Sioux Falls School District, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980). Similarly, as described in the Skoros case, display of holiday symbols is permitted in the public schools as long as the display does not promote one religion over another or promote religion in general.
In sum, your Christmas trees can be considered secular symbols of the holiday season. Feel free to share this information with the disgruntled teacher as you spread your holiday cheer.
Originally appeared in the CAS Weekly Newsletter.