Why reindeer rule Nativity scenes on public property

Every year, a few controversies pop up nationally about the display of Nativity scenes at public courthouses, parks and capitols. These debates seem commonplace, but they’re relatively new in legal history and touch on two important First Amendment rights.

The Supreme Court settles matters related to that amendment’s free speech and religion clauses. However, the issue of crèches and plastic reindeer didn’t appear before the nine justices until 1984. And when it did, the court was deeply divided over the display of Nativity scenes that were in a publicly owned spot or used public funds.

In Lynch v. Donnelly (1984), the court considered if the First Amendment’s Establishment Clause prohibited Pawtucket, Rhode Island from including a Nativity scene in a Christmas holiday display that also had Santa with his reindeer and a Christmas tree. It was in a private park, but Pawtucket used public money to buy the Nativity scene.

{mosads}The Court’s 5-4 ruling was the first time the words “nativity scene” and “crèche” were part of a Supreme Court decision. Chief Justice Warren Burger, writing for the majority, explained the court had dealt with conflicts between religion and local government in recent cases, but the Nativity scene case didn’t belong with them.

Justice Sandra Day O’Connor went further, offering a new test to see if crèches or other religious symbols gave the perception that government endorsed or disapproved of a religion or it was becoming entangled with religion.

“The display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion,” she said. “The creche is a traditional symbol of the holiday that is very commonly displayed along with purely secular symbols, as it was in Pawtucket.”

It was Justice William Brennan who fully brought reindeer into the controversy. He argued that giving equal footing to Santa and his reindeer to the Nativity scene insulted everyone.

“To suggest, as the Court does, that such a symbol is merely ‘traditional,’ and therefore no different from Santa’s house or reindeer is not only offensive to those for whom the creche has profound significance but insulting to those who insist, for religious or personal reasons, that the story of Christ is in no sense a part of ‘history’ nor an unavoidable element of our national ‘heritage’”

Legal experts and journalists, two of the most-sarcastic lots in our society, labeled the controversy as “the reindeer rule.”

A year later, crèches made their second appearance at the court. In County of Allegheny v. American Civil Liberties Union (1989), 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. The justices objected to that display although it included two poinsettia plants and two small trees with red bows. A second public display a block from the courthouse featured a menorah, a Christmas tree and a sign honoring Liberty.

“We agree that the crèche display has that unconstitutional effect, but reverse the Court of Appeals’ judgment regarding the menorah display,” said Justice Harry Blackmun.

The dissent was led by Justice Anthony Kennedy. He addressed the reindeer rule, which was expanded to account for the prominence of decorations near a crèche.

“This test could provide workable guidance to the lower courts, if ever, only after this Court has decided a long series of holiday display cases, using little more than intuition and a tape measure,” Kennedy remarked.

Since then, Nativity scenes have been mentioned rarely at court. The last reference was during Van Orden v. Perry (2005), a Ten Commandments case successfully argued by Greg Abbott, the current Texas governor. Today, Abbott is at the center of a new Nativity scene case that Texas has lost, but is appealing.

In October 2017, U.S. District Judge Sam Sparks said Abbott violated the First Amendment by ordering the removal of a satirical nativity scene from the state capitol that replaced nativity characters with three Founding Fathers looking at the Bill of Rights. It was approved by the state’s preservation board and located near other holiday scenes.

Sparks’ ruling in Freedom From Religion Foundation v. Abbott not only addressed the Establishment Clause about religion but also the Free Speech clause. “Here, Defendants have justified removal of FFRF’s exhibit by arguing the exhibit’s satirical tone rendered it offensive to some portion of the population. That is viewpoint discrimination,” Sparks concluded.

Abbott is appealing the ruling, which is the latest to deal with the inclusion of other religious, anti-religious and satirical symbols in public spaces.

In past years, these controversies have involved an aluminum Festivus pole, a diorama from the Satanic Temple and a holiday greeting from the Church of the Flying Spaghetti Monster.

In 2017, Elwood, Ohio, and Santa Monica moved Nativity scenes away from public places to avoid potential lawsuits. It’s clear that the reindeer rule’s legacy is the opening of a battle on two fronts about public Nativity scenes. On the one hand, a crèche is permissible if accompanied by prominent secular symbols; on the other hand, all religious (and anti-religious) symbols can claim a right to be in the same display if they have a holiday theme.

In hindsight, the words of Justices Brennan, O’Connor and Kennedy seem prophetic, but whether the reindeer rule gets a third chance at the Supreme Court remains to be seen.

Scott Bomboy is the editor in chief of the National Constitution Center in Philadelphia. Follow the Center on Twitter at @ConstitutionCtr.