Christmas Controversy: The Separation of Church and State



Every holiday season, a New Jersey municipality finds itself at the center of a controversy involving a Christmas display. This year, it was Roselle Park and Rutherford.

In Rutherford, Mayor Joseph DeSalvo ordered a Christmas light display taken down from a flagpole. “Out of respect for the American flag. I believe nothing of decoration should be on the flag pole,” DeSalvo stated.

In Roselle Park, a councilwoman resigned because the council changed the name of an event from “tree lighting” to “Christmas tree lighting.” In her resignation letter, Councilwoman Charlene Storey wrote, “I cannot in good conscience continue to be part of a council that is exclusionary or to work with a Mayor who is such.” She later rescinded her resignation.

The Separation of Church and State

The incidents above are certainly not rare. While private property owners can cover their property with mangers, Christmas trees, and Santa Claus, municipalities must be mindful of the constitutional separation of church and state. Under the Establishment Clause, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means that public entities cannot erect holiday displays favoring one religious sect over another or an endorsement of religion altogether.

The separation of church and state has its roots in an 1802 letter from President Thomas Jefferson to the Danbury Baptist Association. He wrote:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

President Jefferson’s phrase “wall of separation between church and state” became law when Justice Hugo L. Black cited the letter in his opinion in Everson v. Board of Education (1947), landmark decision in which the Court extended the Establishment Clause to the States. He wrote:

In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’…. That wall must be kept high and impregnable. We could not approve the slightest breach.

Holiday Displays That Pass Muster

Under current law, holiday displays on public property that contain religious symbols, such as nativity scenes or menorahs, generate the most scrutiny. However, not all religious displays run afoul of the Establishment Clause. In Allegheny v. ACLU, the U.S. Supreme Court held that the addition of Christmas trees and other secular holiday decorations rendered a holiday display, as a whole, constitutional. Accordingly, decorations featuring symbols from different religions, as well as secular symbols of the holidays, are likely to be constitutional.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Christmas Controversy: The Separation of Church and State