The Establishment Clause of the First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion.” In 1947, the U.S. Supreme Court incorporated the Establishment Clause against the states through the Due Process Clause of the Fourteenth Amendment in Everson v. Board of Education, 330 U.S. 1 (1947). Yet crèches, menorahs, and nativity scenes, among other religious displays, appear on the grounds of state houses and city halls across the country each December.
Unbeknownst to the average citizen, this arrangement is the result of decades of litigation between public interest organizations like the American Civil Liberties Union and state and local governments. Indeed, the question of whether the presence of religious-themed holiday displays on public property violates the Establishment Clause has been the subject of three U.S. Supreme Court decisions, several monographs, and dozens of law review articles. Take a look at our bibliography below.
In recognition of this important constitutional issue and the literature surrounding it, the Lillian Goldman Law Library has brought these materials together in one place, just in time for the holiday season! “The Law of Holiday Displays” is located in the display case between the reference and circulation desks on L3.
I. Primary Sources
A. Constitutional Provisions
U.S. Const. amend I, cl. 1. (“Congress shall make no law respecting an establishment of religion”) (Establishment Clause).
U.S. Const. amend XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) (Due Process Clause of the Fourteenth Amendment).
B. Case Law
Everson v. Board of Education, 330 U.S. 1 (1947) (incorporating the Establishment Clause through the Due Process Clause of the Fourteenth Amendment).
Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishing test to determine whether legislation concerning religion violates the Establishment Clause).
Lynch v. Donnelly, 465 U.S. 668 (1984) (crèche at issue).
Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985) (affirming, by an equally divided Court, McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984) (crèche at issue)).
County of Allegheny v. ACLU, 492 U.S. 573 (1989) (crèche and menorah at issue).
Doe v. City of Clawson, 915 F.2d 244 (6th Cir. 1990) (nativity scene at issue).
Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997), cert. denied, 523 U.S. 1004 (1998) (crèche at issue).
ACLU v. Schundler, 168 F.3d 92 (3d Cir.), cert. denied, 520 U.S. 1265 (1999) (crèche, menorah, and Christmas tree at issue) (majority opinion written by then-Judge Samuel Alito).
Woodring v. Jackson Cnty., 986 F.3d 979 (7th Cir. 2021) (nativity scene at issue).
II. Secondary Sources
A. Books and Book Chapters
Wayne Swanson, The Christ Child Goes to Court (1992).
Albert J. Menendez, The December Wars: Religious Symbols and Ceremonies in the Public Square (1993).
Jay D. Wexler, Religious Display Ruckus, in Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars 90 (2009).
Ursula Furi-Perry, The Establishment Clause and Holiday Law, Part I: Public Displays of Religious Holiday Items, in The Little Book of Holiday Law 3 (2013).
Richard W. Garnett & Jackson C. Blais, Public Holidays and the Law, in The Oxford Handbook of Christmas 537 (2020).
B. Scholarly Articles
Jonathan B. Chase, Litigating A Nativity Scene Case, 24 St. Louis U. L.J. 237 (1980).
Sidney Mills Rogers III, Case Note, Lynch v. Donnelly: Our Christmas Will Be Merry Still, 36 Mercer L. Rev. 409 (1984).
Norman Dorsen & Charles Sims, The Nativity Scene Case: An Error of Judgment, 1985 U. Ill. L. Rev. 837.
David C. Fairchild, Lynch v. Donnelly: The Case for the Creche, 29 St. Louis U. L.J. 459 (1985).
David M. Cobin, Creches, Christmas Trees and Menorahs: Weeds Growing in Roger Williams’ Garden, 1990 Wis. L. Rev. 1597.
George M. Janocsko, Beyond the Plastic Reindeer Rule: The Curious Case of County of Allegheny v. American Civil Liberties Union, 28 Duq. L. Rev. 445 (1990).
Richard A. Lacroix, Comment, County of Allegheny v. American Civil Liberties Union: How the Bench Stole Christmas, 25 New Eng. L. Rev. 523 (1990).
Laura Ahn, Case Note, This Is Not a Crèche, 107 Yale L.J. 1969 (1998).
Jennifer H. Greenhalgh, Comment, The Establishment Clause and Government Religious Displays: The Court That Stole Christmas, 15 Touro L. Rev. 1053 (1999).
B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 Duke L.J. 705 (2010).