Christmas and the Constitution Can Coexist

Published December 18, 2013

Many educated Americans likely recognize the expression “separation of church and state” but probably do not know it appears nowhere in the Constitution. Thomas Jefferson used it in a January 1, 1802 letter to the Danbury Baptist association in the state of Connecticut.

Many others might name the First Amendment as the one that protects freedom of religion, yet very few could likely recite its text and fewer still would claim to understand what a “law respecting an establishment of religion, or prohibiting the free exercise thereof” actually means. Even Supreme Court justices often disagree on this.

So it is that, every holiday season, one brushfire or another inevitably erupts concerning the mention or depiction of “Christmas” in the public square, usually in the form of a lawsuit seeking to prevent the display of a Christian crèche in a public space.

Over the years, savvy states and many municipalities have decided to ditch the nativity scene and denominate a Christmas tree a “holiday” tree, or to include enough obviously secular signs of the season—Santa Clauses, gingerbread houses, reindeer, etc.— to dilute the religious overtones. And taking the hint or lacking the funds and patience to litigate instead of educate, many if not most public schools seem to have now substituted a “winter break” for “Christmas vacation.”

In Chicago, since 1988, a federal court decision has allowed the public display of religious exhibits on government property so long as private groups sponsor and maintain them, as that creates neither state “establishment” of religion nor any prohibition on the free exercise thereof. And so for the past couple of decades separate private groups have assembled and maintained a life-sized manger scene depicting the birth of Christ and an over-sized Jewish menorah, both outside the downtown county courthouse, better known as the Richard J. Daley Center. Although one year someone made off with the baby Jesus (which has since been returned or replaced), the two displays have happily coexisted ever since.

This year, however, on the quarter-century anniversary of the court decision, an out-of-state group calling itself the Freedom from Religion Foundation obtained permission to erect a large illuminated “A” between the crèche and the Menorah.

The script “A”—which presumably stands for “atheist” or “agnostic”—is actually quite pretty when lit up after dark, but it has nothing to do with any recognized national holiday or cultural celebration, which brings up the question: What is it doing there? To many it appears to be simply an in-your-face rejection of the symbols of two longstanding world religions with many adherents in the United States and elsewhere.

According to Freedom from Religion Foundation co-president and self-identified atheist Annie Laurie Gaylor, in a perfect world none of the three displays—menorah, crèche, or “A”—would be in a public space outside a government building. “The month of December does not just belong to religion or Christianity,” the Chicago Tribune quoted Gaylor as saying.

Gaylor is of course quite correct about the month, in the same way the month of October doesn’t belong just to breast cancer survivors and February doesn’t belong just to African-Americans. But no one claims otherwise, and few people of good will begrudge public recognition of either Breast Cancer Awareness month or African-American History month.

Like it or not, the United States of America was founded by people who believed in a higher power and who came here precisely to practice their religion openly, free from government interference, and our founding documents reflect that. “We hold these truths to be self-evident, that all men are … endowed by their Creator with certain unalienable Rights,” begins the second paragraph of the Declaration of Independence. “Government shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” begins the First Amendment to the Constitution, which also protects our unalienable rights to freedom of speech, freedom of the press, the right to assemble peaceably, and the right to petition the government for the redress of grievances.

Article VI of the Constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” but—mirroring the last verse of our national anthem—the words “In God We Trust” appear on the back of our currency, the front of our coins, and the walls of every courthouse in the country.

So in the spirit of the holidays, let’s welcome the atheists to their little spot on Daley Plaza, while in the spirit of the nearby Christkindlmarket featuring foods and traditional Christmas decorations and trappings, mostly from Germany, let us also offer them this bit of Christmas cheer: “Peace on Earth. Good will to all. 

‘Tis the season. Let a free people celebrate it freely, in the ways they see fit.


David L. Applegate is a Chicago-based trial lawyer and partner at Williams Montgomery & John Ltd and a policy advisor for legal affairs for The Heartland Institute.