What would make an NJ town’s holiday display unconstitutional?

With the holiday season officially underway, municipal officials in New Jersey are scrambling to put together holiday displays that won’t offend anybody — or trigger possible lawsuits.

According to Mike Cerra, the assistant executive director of the New Jersey League of Municipalities, what is and is not permitted for a holiday display on municipal property can become a very complex legal issue. However, a court case 20 years ago in Jersey City provides good guidelines for towns to follow, he said.

“It’s clear that a purely religious display, especially if it pertains to just a single religion, is most likely going to be found unconstitutional,” he said. “However, a display containing symbols from different religions as well as secular symbols of the holidays would meet the constitutional test.”

So would a town that erects a Christmas tree and a menorah have to put up a sleigh or a reindeer with a blinking red nose as well?

“It’s a case-by-case basis, but it probably would need to be more diverse and have some secular symbols as well,” Cerra said.

In other words, he says a holiday display that features a crèche, a menorah and a Christmas tree should also include any number of same-sized secular symbols which could include “figures of Santa Claus, Frosty the Snowman, sleds, the Elf on the Shelf- an elf comes to your house every night and watches your kids. The more inclusive a display is, the more likely it will pass Constitutional muster.”

Cerra said because these guidelines have been hammered out, there has not been a significant holiday display court case in Jersey in several years.

Last fall, a League of Municipalities attorney was asked to offer general guidelines to towns on this issue. The following letter was to then-executive director Bill Dressel by Edward Purcell Esq., NJLM Associate Counsel-Staff Attorney:

"The leading case in this area of law is ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999).  In that case, Jersey City erected, on city property and in front of City Hall, a display with a nativity scene, also called a crèche, and a menorah. The ACLU challenged this display on First Amendment grounds in 1994, and the District Court ordered the city to never again erect the holiday display.

In 1995, Jersey City again erected a holiday display, again containing a crèche and a menorah. However, this time the city added Kwanza symbols, figures of Santa Claus and Frosty the Snowman, a sled, and signs that indicated the city celebrated the diverse cultural and ethnic heritages of its residents. All of the displays were of roughly the same size and prominence. The Third Circuit Court of Appeals found this a permissible display that did not run afoul of the Establishment Clause of the First Amendment. This case gives some general guidelines to municipal officials for permissible holiday displays.

A purely religious display, especially one related to a single religion, is almost certainly unconstitutional. In a prior case, the United States Supreme Court held a crèche, with a few poinsettias and a banner reading “Gloria in Excelsis Deo!” had the “unconstitutional effect of conveying a government endorsement of Christianity.” Allegheny v. ACLU, 492 U.S. 579, 627 (1989).

A display containing symbols from different religions, as well as secular symbols of the holidays, is likely constitutional. The constitutionality of such a display is further enhanced if a secular message is also included; for example, the message in the Jersey City display celebrating the diverse cultural and ethnic heritages of its residents, or another display in the Allegheny case that consisted of a menorah, a Christmas tree, and sign celebrating liberty and freedom. The Supreme Court found the inclusion of the secular Christmas tree and secular message rendered the display constitutional.  Id. at 659.

The secular symbols and messages should not be included merely as an attempt to legitimize the religious aspects.  To that end, they should be at least as prominent as any religious displays.

The law in this area remains complex, and municipal officials should consult their municipal attorneys about the legality of their particular display and the potential future impact of any decision reached."