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More on the Tricky Rules of Religious Displays

The following is a transcript of "The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from QuickAndDirtyTips.com. The audio program is available via RSS feed here and at TheStreet.com's podcast home page.

Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

This episode is the second of a two-part series on the Establishment Clause. In the first episode, I discussed some basic principles, and in this one, I will discuss how these principles apply to government holiday displays.

The First Amendment to the United States Constitution provides in relevant part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ...

Many Americans love December because it contains Christmas, Hanukah, Kwanza, Solstice, and other religious celebrations. Sometimes, government entities choose to get in the holiday spirit by displaying ornate Christmas trees, menorahs and wreaths. But, when do such displays become an impermissible "establishment" of religion?

While not completely consistent, the Supreme Court has adopted a general test whereby a government holiday display is impermissible where a reasonable passerby would conclude from the display that the government endorses a religion.

In a leading case on the issue, Lynch v. Donnelly, the Court considered a Christmas display erected by a downtown merchants' association in cooperation with the City of Pawtucket, Rhode Island. The display included a Christmas tree, a Santa Claus house, candy-striped poles, colored lights, a banner reading "Seasons Greetings," and a nativity scene, also known as a crèche. In a 5-4 decision, the Court upheld the display of the nativity against an Establishment Clause challenge.

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