Senator Joey Hensley, MD

Christmas Is Legal

I’ve been publishing this information for many years and every year it seems to reach more than it did the year before. My hope would be that it will serve as a reminder to everyone what Christmas is truly about and that each year it reaches someone new. I hope you enjoy it.

As Christmas approaches and we all look forward to celebrating the holiday season, many begin to wonder just what the law says about religious expression. I would like to offer some clarification about what is legally acceptable seasonal religious expression in our community. Over the past few years, it seems that misunderstandings of the origin and meaning of the phrase “separation of church and state” have encouraged a few to embark on a mission to remove all references to religion from schools, government buildings, and public property.

The phrase “separation of church and state” doesn’t appear in the Constitution. It originated in 1802 in a private letter from Thomas Jefferson to a group of Baptist ministers in Danbury, Connecticut- 13 years after the First Amendment was passed. Courts have consistently ruled since then that eliminating all signs of religion from the public square is just as unconstitutional as establishing a religion. In response to recent efforts to censor Christmas in our country, it might help to clarify the forms of religious expression that are legal under the Constitution in case law

Students are free to express their religious beliefs in school. As long as it’s not materially disruptive, students may express their beliefs verbally with phrases such as “Merry Christmas”; through clothing that conveys religious messages with words, colors, or symbols; or through written materials like school assignments, religious cards, gifts, or tracts given to teachers and classmates. (Lovell v. City of Griffin, 303 U.S. 444 [1938]; Westfield High School L. I. F. E. Club v. City of Westfield, 249 F. Supp.2d 98 [D. Mass. 2003].

Legislation allowing school officials and students to say Merry Christmas, Happy Hanukkah, or Happy Holidays to one another has become law in the past years. The statute seeks to allow the greeting to be exchanged in schools without fear of a lawsuit.

At school, students can sing Christmas carols at concerts, teach the biblical origins of Christmas, and perform the Christmas story of Mary, Joseph, Jesus, and the shepherds. The Constitution does not require the exclusion of religion from public institutions. Christmas is part of our heritage and ingrained in our culture; therefore, expression of it through art and music and teaching of it as history serve both a religious and secular purpose. Provided these activities promote the “advancement of the students’ knowledge of our society’s cultural and religious heritage; an opportunity for students to perform a full range of music, poetry, and drama that is likely to be of interest to the students and their audience,” any of these activities can be conducted in public schools without creating an Establishment Clause problem (Flory v. Sioux Falls School District, 619 F.2s 1311 [6th Cir. 1980]; Stone v. Graham, 449 U.S. 39 [1980].

Nativity displays can be placed in schools, parks, and government buildings. No Supreme Court decision has ever forbidden a private citizen from setting up a nativity display in a public park, as parks, streets, and sidewalks are all public forums traditionally devoted to “assembly and debate.” Such displays may also be placed in public buildings, provided the government has opened the property for expressive activity.

The Free Exercise Clause assures religious speakers the same access to public forums given to secular speakers (Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538 [1992]. Nor can private citizens be forced to include objects such as snowmen in their faith-based displays (West Virginia v. Burnette, 319 U.S. 624, [1943]. Furthermore, even under current decisions, city governments may include a nativity in a seasonal display provided 1) there are a sufficient number of secular objects along with religious ones, 2) the secular objects are in close proximity to the religious ones, and 3) overall, the display is sufficiently secular. (Lynch v. Donnelly, 465 U.S. 668,671 [1984].

The U.S. Constitution laws and court decisions are all constructed to protect and permit religious expression in both public schools and government buildings. Attempts to remove Christ from Christmas do not stem from the Constitution, but from those who simply seek to silence the Christian message. That very act is a violation of the Constitution.

Thank you for this opportunity to clarify the legal position on keeping Christmas and many other forms of religious expression a vital part of our faith and heritage. Merry Christmas to each and every one of you, and my best wishes for a joyous New Year.

Contact Senator Hensley at

425 5th Avenue North, Suite 746

Nashville TN 37243

615-741-3100

Toll Free 1-800-449-8366

ext. 13100

Fax 615-253-0231

855 Summertown Highway

Hohenwald TN 38462

Phone 931-796-2018

Cell Phone 931-212-8823

E-mail:

[email protected]