America in the midst of our holiday season – a time for family, rest, and the hotly contested litigation over religious exhibits on government property.

For the installment of this year, we have a “tree lighting event” hosted by the Parent and Teacher Association of Carmel River Elementary School, a public school in Northern California. The event is a fairly standard holiday affair and included the decoration of the tree on the school grounds. What could possibly go wrong?

A Jewish parent, with four children enrolled in the school, asked if the PTA could include a 6-foot inflatable menorah at the tree-lighting event. The principal expressed his support for the incorporation of a menorah into the event, but his next move took him to court.

In a school-wide email, the principal encouraged students to “decorate the tree with something that reflects their family’s values, heritage and / or faith,” but to s’ make sure those decorations “fit in a lunch bag, a paper bag” – you know, for space reasons.

Unsurprisingly, the Jewish parent was not satisfied. After all, not only is it difficult to fit a menorah into a lunch bag, but the idea of ​​turning the menorah into a Christmas tree ornament undermined the purpose of its original request. She filed a lawsuit in federal court, arguing that the public school event violated the First Amendment’s establishment clause and her commitment to the separation of church and state.

The reality is that cases like this are relatively common, each with their own nuances based on the underlying facts.

For a court to find a violation of the First Amendment, the government must be the one erecting the religious symbol or hosting the event, and the event or symbol must in fact constitute a prohibited amalgamation of the church and the State.

Reviews | Is the Christmas tree a religious symbol? And a menorah?

Determining when an event is actually being hosted by a government entity or government official can be quite tricky. Governments sometimes rent premises on equal terms to anyone interested. In these cases, the religious symbol is not attributable to the state. But if the officials provide space and then exercise control over the event, it starts to look very different.

But more fundamentally, what does a prohibited merger of church and state even mean or what does it look like?

In a ruling last week, a federal district court ruled in favor of the school. The court did not do so because it did not believe the school was involved in the event. On the contrary, the court concluded that the principal and the superintendent of the school had control over the event.

But the court concluded that the Christmas tree is not a religious symbol, relying on a famous 1989 Supreme Court case which stated “[t]he Christmas tree, unlike the menorah, is not in itself a religious symbol. And, “[i]In light of the Supreme Court’s final statement on the matter, ”the district court ruled that there could be no constitutional problem if the event did not actually include a religious symbol.

Was the District Court Right?

Establishment clause cases often work like a Rorschach test. But, at a minimum, there are good reasons to question the district court’s importation of a line from the Supreme Court opinion of 1989.

In this case, County of Allegheny v. ACLU, the Supreme Court considered several religious exhibits erected in Pittsburgh. One of the exhibits, set up in front of a local government building, featured a 45-foot Christmas tree, an 18-foot menorah, and a “salvation to freedom sign” with the mayor’s name on it.

Reviews | Is the Christmas tree a religious symbol? And a menorah?

A majority of the Supreme Court ultimately concluded that this posting was constitutional. The Christmas tree, he concluded, was not a religious symbol. And the menorah was just there as an expression of pluralism.

In short, it was “a secular celebration of Christmas coupled with recognition of Hanukkah as an alternative contemporary tradition.” And for this reason, no citizen looking at the display would think the government approves one faith – or two – over others. Doing so – endorsing a particular religion or set of religions – was, at least then, considered by judges to be a violation of the First Amendment.

Following the Supreme Court’s opinion, lower courts attempted to implement this type of contextual interpretation of vacation postings to assess their constitutionality.

These have undoubtedly given mixed results. The context is, very often, in the eye of the beholder. But telling the facts about Allegheny County hopefully shows a serious difference between the current mess and the Supreme Court’s opinion in 1989.

In the contemporary case, the Carmel River School sought to exclude, instead of including, the menorah in its display. So while some might not normally view a Christmas tree as a religious symbol, that view might change when government officials ban the inclusion of a menorah alongside it.

Under these circumstances, you might start to wonder if the display has started to take on a narrower religious significance. And when the school proposes to turn the menorah into an ornamental appendage of a Christmas tree, those concerns might – quite reasonably – grow stronger. In this way, the district court’s attempt to squeeze a sentence out of a 1989 Supreme Court opinion, fall into a dispute today and call it a day may not be the case. the most thorough and thoughtful way of dealing with the matter before it.

That being said, times have changed. While in the 1980s the Supreme Court’s opinion focused on whether religious displays made the government appear to approve of a religion, more recent cases have suggested a slight doctrinal shift.

Indeed, the Supreme Court, on several occasions, has now indicated that it cares less about whether government conduct supports religion, but whether its conduct constrains religion.

The definition of the contours of each of these categories – approval and coercion – is deeply contested. But suffice to say that this change would make it less and less likely that the court would find constitutional problems with religious displays on government property. Overall, such displays don’t force anyone to do anything. These are just displays, after all.

And yet, it’s hard not to finish with the next relatively simple point. Despite all of these contextual intricacies and jurisprudential trends, it would be good to think that, as we desperately seek ways to reunite after such a long separation, schools might find ways to make sure their students and families feel all included in community gatherings. After all we’ve been through, is it really that hard to make room for a 6ft inflatable menorah?

Reviews | Is the Christmas tree a religious symbol? And a menorah?

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