The overwhelming majority of American adults (72%) believe that nativity scenes should be allowed on government property, according to a 2014 Pew Research Center survey. But that doesn’t stop atheist organizations from bullying governments into secularizing Christmas and fully untethering the national holiday from its religious origins.
Gig Harbor, WA, is the latest target of such attacks. The city recently decided not to allow a privately owned nativity display at one of its parks after receiving a letter from the Freedom From Religion Foundation. The letter threatened legal action if the city refused to comply with its demands to remove the display, which is usually erected at Skansie Brothers Park.
The Freedom from Religion Foundation (FFRF) is a radical atheist and anti-Christian organization best known for targeting prayer at school graduation ceremonies and military events. It has also threatened legal action against other cities over nativity scene displays.
“We don’t think religion or irreligion should be on public property,” Annie Laurie Gaylor, FFRF’s founder and president, said to the Tacoma News Tribune.
While some modern court decisions have reinterpreted the First Amendment’s Establishment Clause as prohibiting governmental encouragement of religion, this interpretation is faulty and contrary to the intent of the Establishment Clause’s framers.
In his Commentaries on the Constitution (1833), Supreme Court Associate Justice Joseph Story (a Madison nominee) wrote that the original intent of the First Amendment appropriately allowed for the encouragement of Christianity:
“Probably at the time of the adoption of the [U.S.] constitution, and of the [First] amendment to it… the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.”
However, Gig Harbor’s nativity scene still meets the Court’s arbitrarily high standards for public religious displays. Since the nativity scene is privately owned, and because the city would presumably allow other private citizens’ holiday displays to be exhibited at its parks, it fulfills the Supreme Court’s test and thus qualifies as a legal display.
Modern case law affirms that cities may display nativity scenes provided that they respect these general rules:
- Privately owned religious displays, including nativity scenes, can be displayed in public forums so long as the city also allows displays from other groups and individuals. (Pinette, 1995).
- City-owned religious displays like crèches and nativity displays are permitted since they depict an historical religious event long celebrated in the Western world and acknowledged by all three branches of government (Pleasant Grove v. Summum, 2009; Lynch v. Donnelly, 1984; Van Orden v. Perry, 2005).
- City-owned nativity scenes can be displayed so long as the religious displays are accompanied by secular symbols. If the nativity scene is city-owned, the city can still reject the requests of private organizations to erect alternative displays. Secular symbols include candy canes, portrayals of Santa Claus, Christmas trees, etc. (FFRF v. City of Warren, 2013).
Moreover, Gig Harbor cannot rest upon the excuse that it made the decision to avoid costly litigation. Religious liberty organizations like Liberty Counsel, Alliance Defending Freedom, the ACLJ, and the Thomas Moore Society have all offered to provide pro-bono legal support to cities and states in similar situations.
It is lamentable that Gig Harbor yielded to FFRF’s toothless legal threats and meritless legal arguments. The Constitution protects the right of private individuals and local governments to proclaim our shared Judeo-Christian national heritage by displaying nativity scenes in public forums.
We shouldn’t surrender to the radicals who say otherwise and misrepresent the First Amendment in their efforts to eradicate the message of one of our most treasured national holidays.
Liberty Counsel and the ACLJ have both published helpful memoranda explaining the case law applicable to public nativity scenes and other forms of religious expression during the Christmas season.
