Q: It’s that time of year, and we wonder to what extent can a Christmas tree be placed on government property?
W.B., Torrance
A: The Establishment Clause, part of the First Amendment, calls for the “separation of church and state.” This means the government is prohibited from making any law respecting an establishment of religion. Thus, the government is not to adopt an official religion, favor one religion over another, prefer religion over non-religion, or advance, promote or endorse religion.
All that said, the question of whether a Christmas tree (or a religious display) placed on government property is constitutional, calls for a multi-step analysis. Some of the questions to be dealt with: Who is funding and erecting the display or item? Is it a private group who has free expression? What type of forum is it? And, just what is being placed there?
Government neutrality is a key element of the Establishment Clause. There are two Supreme Court tests, based upon two cases. Specifically, does the government have a secular purpose with the display or item? Is the primary effect to advance or promote religion? Is there excessive entanglement between the government and religion in the item or display? Then, what would a reasonable person determine as to whether the display or item is an endorsement of religion?
Bottom line, there is no bright line answer to your inquiry, but argument can be made that a Christmas tree simply is intended to be festive, colorful and part of the holiday spirit. If it is combined with other secular items, it may both be allowed and allowable.
Q: With all the rules about separating church and state, can a chaplain open a session of the Legislature with prayer?
H.D., Lawndale
A: In 1983, the Supreme Court (in the case of Marsh v. Chambers) took up this issue. Instead of going through the analysis cited above, by which evaluation is made to assess if an item or display violates the Establishment Clause, the court instead referenced the historical practice dating back to the first U.S. Congress, and held that state legislatures had the right to hire chaplains to begin proceedings with a prayer.
The Supreme Court has not resolved all of the questions related to such prayers, but has generally been more accepting of religious expression in settings involving adults than in situations that involve adolescents (on the premise the younger persons are more vulnerable to peer pressure).
Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.