The U.S. has always been a culturally Christian country. At no other time, perhaps, than Advent and Christmas, are our Christian roots more visible. We can turn on the radio and hear “Away in a Manger” or “Silent Night” sung by Nat King Cole, or drive down the street and see Nativity scenes lit up in front yards. There are social media movements to “keep Christ in Christmas,” and many make the extra effort give to charity and serve the poor during this season of giving. Despite this Christmas spirit, every year we hear of new legal challenges to the display of religious images in public ranging from the display of the Ten Commandments in courthouses to Nativity scenes on display in city halls and public parks. But what does the Constitution say about the legality of such religious displays by government? Over the years, many cases have been brought before the U.S. Supreme Court regarding this issue, but the legal answers are far from clear.
In this lesson your students will:
Understand protections of religious freedom afforded by the First Amendment of the U.S. Constitution.
Understand the difference between individual expression and government speech.
Analyze key Supreme Court decisions regarding the display of religious images and symbols by government.
Assess the criteria courts use to determine constitutionality of laws and activities pertaining to church and state.
The Establishment Clause of the First Amendment of the United States Constitution and the Lemon Test
First, have your students read the essay titled The Establishment Clause of the First Amendment of the United States Constitution and The Lemon Test. Then, have your students complete the focus and reflection questions.
When your students have completed the focus and reflection questions, review and discuss the correct answers. Conduct a discussion with your students about whether or not they agree with the Supreme Court ruling and why.
Public Religious Displays: Are They Constitutional?
With a partner, have your students read through each scenario. Then have them discuss together and answer the questions.
When your students have completed the activity, call on pairs of students to share about and discuss the scenarios. If needed, remind students that the Court has nine Justices, meaning that a vote of 5-4 is the narrowest margin for deciding a case. Use the following information to help guide the discussion:
The Supreme Court heard a case, Van Orden v. Perry (2005), similar to the first scenario. The court ruled in a 5-4 decision that the Establishment Clause did not require the state of Texas to remove the image of the Ten Commandments from a monument on the grounds of its state capital. The ruling noted that even though a separation of church and state should be maintained, that separation does not require hostility towards religion and should not prevent the government from recognizing the religious heritage of our country. You may also wish to note that the U.S. Supreme Court itself features a similar relief sculpture.
The Supreme Court heard a case, County of Allegheny v. ACLU (1989), similar to the second scenario. In a complicated decision, the court ruled that the Nativity scene inside the court house was unconstitutional, but the outdoor display of the Menorah was constitutional. One group of justices found both displays to be in compliance with the Establishment Clause, saying that simply displaying the religious imagery was not the same thing as establishing or coercing others to believe a certain way. Rather, it was a passive acknowledgment of the religious heritage of our country. Another group of justices found both displays to be in violation of the Establishment Clause, arguing that a reasonable person would find the displays to be an endorsement by the government of religion. Ultimately, the Court concluded that the presence of an angel in the Nativity scene holding a banner with the message “Glory to God in the Highest” as well as the placement of the Nativity scene in “the most beautiful” part of the building could be seen by reasonable persons as government endorsement of the religious message of Christianity. The Court ruled that the Menorah, however, represented a display of religious tolerance and diversity because it was placed alongside a Christmas tree (a secular symbol of Christmas) and a message of peace.
The Supreme Court heard a case, Stone v. Graham (1980), similar to the third scenario. In another 5-4 decision, the court ruled that the Kentucky state law requiring the display of the Ten Commandments in every public school classroom was in violation of the First Amendment because the state did not have a clear secular purpose for the display of what is “undeniably a sacred text.”
Throughout the discussion, help your students understand that the Supreme Court decisions involving religious displays on government property have almost all been divisive and complicated decisions that were decided by the narrowest possible majority.
See the article “Religious Displays and the Courts” from the Pew Forum on Religion and Public Life for more detailed information on various court cases regarding the display of religious imagery in public. (PewForum.org/files/2007/06/religious-displays.pdf)
Nativity Scene in a State Capital
Have your students read the newspaper article, “Nativity Scene Inside Iowa Capital Called Free Speech”, by William Petroski, The Des Moines Register. Then, arrange your students into groups of three or four. Have them discuss what they have learned over the course of this lesson and apply it to this current case of a Nativity scene in the Iowa state capital. Have your students discuss the following questions:
Based on what you have read about the Nativity scene in the Iowa state capital, does its display comply with the First Amendment of the U.S. Constitution? Use the three criteria of the Lemon Test to help make your determination.
Would you support the display of the Nativity scene on public property? Why or why not?
When each group has finished discussing, call on groups to share with the class about their discussion.
Answer Key:
The Establishment Clause of the First Amendment of the United States Constitution and the Lemon Test Focus and Reflection Questions
The first clause prevents the government from establishing a national religion (or from interfering with the established state churches that existed when it was passed in 1791). The second clause prevents the government from interfering with every person’s natural right to freely accept and practice any religion.
The 14th Amendment says that states cannot deprive their citizens of life, liberty, or property without due process. As a result of the 14th Amendment, the Supreme Court began to hear cases about whether states were violating the prohibition against an “establishment of religion.”
It was asserted that the states were violating the Establishment Clause of the First Amendment because they reimbursed part of private (mostly Catholic or other religious) school teacher salaries for teachers who taught non-religious, secular subjects.
The Lemon Test is often used to determine if a law complies with the Establishment Clause of the First Amendment. The three criteria are: 1. It must have a secular (non-religious) purpose; 2. Its primary effect must neither advance nor inhibit religion; 3. It must not foster “an excessive government entanglement with religion”
The Supreme Court ruled that the states were in violation of the Establishment Clause of the First Amendment because the state programs created excessive government entanglement with religion.
The Lemon Test has been used by courts in the years since to help determine whether or not specific laws and even activities and practices by local, state, and federal governments comply with the Establishment Clause.
Accept reasoned answers.
It is an important distinction because the whole point of the Constitution is to protect natural rights and the common good. Since the First Amendment only limits government action, there can never be a constitutional violation when individuals, families, or private businesses express their religious views. Homes, restaurants, malls, and other privately-owned businesses can display whatever religious messages they wish and the government cannot interfere: the free exercise clause specifically prevents government from infringing on peoples’ free exercise of religion.
