A Writer's Guide to the First Amendment: Religious Speech under the Establishment Clause

The Establishment Clause of the First Amendment says, “Congress shall make no law respecting an establishment of religion.” As I explained in my February 27, 2014 post, the restriction isn’t limited to Congress but includes state and local governments.

But what does the clause mean? Thousands of books have tried to answer the question, and I don’t have the space in this blog post to add my thoughts. For our purposes, it is enough to say that the Supreme Court’s decisions make it clear that governments cannot endorse or favor any particular religion. They can, however, allow religious speech in a governmental setting as long as all religions (and atheism) are treated equally. The cases also make it clear that context matters.

This is the main distinction between the various cases involving Christmas displays. In County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Supreme Court even reached opposite conclusions in the same case. There were, however, two separate displays, and the distinctions directed the results. These pictures were printed with the Supreme Court opinion, and they are not good quality when reproduced here. Nonetheless, they may help you understand the general impression that each conveyed.

The first display involved a large crèche displayed prominently on the Grand Staircase in the county building. Although it was surrounded by poinsettias and small evergreens, they tended to highlight the crèche rather than distract from it.

The second display was one block away on city land. The centerpiece was a large Christmas tree flanked by a menorah on one side and a sign on the other that identified the display as a “Salute to Liberty.”

Four justices voted that both the manager scene and the menorah violated the Establishment Clause, and four justices voted that neither did. Justice Blackman was the swing vote that split the decision.

According to Blackman, the first display violated the Establishment Clause because the crèche is clearly a religious symbol, with the Nativity being a crucial part of the Christian message. For him, the context made it clear that the county was endorsing that message.

He reached a different conclusion for the second display. He dismissed the Christmas tree as a secularized representation of Christmas but had a harder time with the menorah. Even so, he felt that the menorah had taken on some secular implications as well. The combination of these two symbols with the “Salute to Liberty” theme swayed him to vote that the city display was constitutional.

Today the courts seem to agree that even a manger scene is acceptable if it is provided by private individuals or organizations and is part of a larger display. In other words, religious speech is acceptable on government property if it is allowed rather than mandated and if all religions (and atheists) are given equal treatment. This is true in schools as well as in the public square.

Next month we will discuss the government’s ability to restrict your religious speech.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.