The Volokh Conspiracy - Government Display of Christmas Trees:

The Seattle airport rabbi and Christmas tree story raises the question: Would it violate the Establishment Clause for the government to put up a Christmas tree alone, with no accompanying menorah or similar gesture towards ecumenicalism? A Slate piece suggests (though perhaps somewhat ambiguously) that allowing such stand-alone Christmas trees would involve "overturn[ing] the status quo" set by the Supreme Court's Allegheny County v. Greater Pittsburgh ACLU decision:

Consider, for example, the latest brouhaha: the Seattle-Tacoma airport's decision to take down Christmas trees rather than put up a menorah as well. After a Lubavitcher rabbi pointed out that the public display of Christian symbols violated the First Amendment, the right-wing Christmas Warriors flooded him with "hundreds of hate mail messages" that were part of "a surge of anti-Semitism," according to the Anti-Defamation League. Pressured, the rabbi relented and the trees were put back, foregoing any parallel acknowledgment of Hanukkah.

The Christmas extremists can claim a yarmulke for their wall. But let the record show that they, not the rabbi, were seeking to overturn the status quo. For more than 17 years, the law of the land -- i.e., the Constitution as interpreted by the Supreme Court -- has held that public holiday displays must be fundamentally secular. To erect nativity scenes in public places, the high court held in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989), is to impermissibly endorse Christianity. Yet the Court also held that governments may "celebrate the season" through joint displays of Christmas trees and menorahs, since doing so acknowledges, as Justice Harry Blackmun wrote, that "Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Far from a victory for hard-line secularism, the 1989 ruling struck a moderate compromise between the ACLU's desire that no religious displays be permitted and the Christianists' belief that a city government can proclaim glory to the Christ child.

But Justice Blackmun's and O'Connor's controlling opinions in Allegheny expressly said that "when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith" (Blackmun) and "[a] Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity" (O'Connor), because the Christmas tree was "not itself a religious symbol." Add to that the votes of Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, who would have no problem with public display of religious symbols, and you get a Court majority for the proposition that public displays of Christmas trees don't violate the Establishment Clause (at least unless there's accompanied with something else that's more overtly religious). The six Justices also went further and said that the Christmas tree is permissible even when accompanied by a menorah; but under their reasoning, a Christmas tree standing alone would be fine, too.

I think that's right. The Christmas tree does not itself have religious meaning (as opposed to a creche, which does); and while it is associated with Christmas, so are lights on trees and eggnog, and so the Easter Bunny and egg hunts are associated with Easter. Such association does not make the tree send a message of endorsement of Christianity, just as putting lights on other trees during the Christmas seasoning or having the Easter Bunny appear at a government-run event doesn't send such a message.

But even if the Court's judgment on this was wrong, it was still a judgment of the majority of the Court the last time the Court visited the question. As a legal matter, then, government display of Christmas trees does not "impermissibly endorse Christianity," and allowing such displays preserves, rather than overturning, the legal status quo.

	[Eugene Volokh, December 15, 2006 at 6:24pm] Trackbacks Government Display of Christmas Trees: The Seattle airport rabbi and Christmas tree story raises the question: Would it violate the Establishment Clause for the government to put up a Christmas tree alone, with no accompanying menorah or similar gesture towards ecumenicalism? A Slate piece suggests (though perhaps somewhat ambiguously) that allowing such stand-alone Christmas trees would involve "overturn[ing] the status quo" set by the Supreme Court's Allegheny County v. Greater Pittsburgh ACLU decision: Consider, for example, the latest brouhaha: the Seattle-Tacoma airport's decision to take down Christmas trees rather than put up a menorah as well. After a Lubavitcher rabbi pointed out that the public display of Christian symbols violated the First Amendment, the right-wing Christmas Warriors flooded him with "hundreds of hate mail messages" that were part of "a surge of anti-Semitism," according to the Anti-Defamation League. Pressured, the rabbi relented and the trees were put back, foregoing any parallel acknowledgment of Hanukkah. The Christmas extremists can claim a yarmulke for their wall. But let the record show that they, not the rabbi, were seeking to overturn the status quo. For more than 17 years, the law of the land -- i.e., the Constitution as interpreted by the Supreme Court -- has held that public holiday displays must be fundamentally secular. To erect nativity scenes in public places, the high court held in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989), is to impermissibly endorse Christianity. Yet the Court also held that governments may "celebrate the season" through joint displays of Christmas trees and menorahs, since doing so acknowledges, as Justice Harry Blackmun wrote, that "Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Far from a victory for hard-line secularism, the 1989 ruling struck a moderate compromise between the ACLU's desire that no religious displays be permitted and the Christianists' belief that a city government can proclaim glory to the Christ child. But Justice Blackmun's and O'Connor's controlling opinions in Allegheny expressly said that "when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith" (Blackmun) and "[a] Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity" (O'Connor), because the Christmas tree was "not itself a religious symbol." Add to that the votes of Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, who would have no problem with public display of religious symbols, and you get a Court majority for the proposition that public displays of Christmas trees don't violate the Establishment Clause (at least unless there's accompanied with something else that's more overtly religious). The six Justices also went further and said that the Christmas tree is permissible even when accompanied by a menorah; but under their reasoning, a Christmas tree standing alone would be fine, too. I think that's right. The Christmas tree does not itself have religious meaning (as opposed to a creche, which does); and while it is associated with Christmas, so are lights on trees and eggnog, and so the Easter Bunny and egg hunts are associated with Easter. Such association does not make the tree send a message of endorsement of Christianity, just as putting lights on other trees during the Christmas seasoning or having the Easter Bunny appear at a government-run event doesn't send such a message. But even if the Court's judgment on this was wrong, it was still a judgment of the majority of the Court the last time the Court visited the question. As a legal matter, then, government display of Christmas trees does not "impermissibly endorse Christianity," and allowing such displays preserves, rather than overturning, the legal status quo.