The Supreme Court’s “reindeer rule”

Each holiday season, as peppermint mochas return to coffee shop menus and mall Santas take their posts, a familiar kind of religious freedom conflict appears in the news: disputes over nativity scenes. Specifically, communities across the country have battled and are battling over whether depictions of the biblical story of Jesus Christ’s birth belong in seasonal displays on public land.

This crèche conflict continues despite two Supreme Court rulings on the topic. Twice in the 1980s, the justices considered whether nativity scenes on public property violate the First Amendment’s establishment clause, which, among other things, bars the government from treating one religion better than others. The cases divided the court, which ultimately allowed one display and prohibited the second.

These divergent decisions are still debated today, in part because they grew out of a controversial establishment clause precedent. Here’s an overview of what the court said in the cases, what legal experts mean by the “reindeer rule,” and why some justices felt the ruling permitting a nativity display watered down the religious significance of Christmas festivities.

A nativity scene next to Santa’s sleigh

The court first addressed nativity displays in 1984’s Lynch v. Donnelly. The case centered on a crèche in Pawtucket, Rhode Island, that appeared in the heart of the city’s shopping district each December alongside secular Christmas symbols, such as Santa’s sleigh, reindeer, and a banner reading “SEASONS GREETINGS.” The city owned all of these decorations, but it had been sued over only the nativity display. The challengers contended that, with the crèche, the city was promoting a Christian message and thereby violating the establishment clause.

The lower courts agreed with the challengers, holding that the city was “endors[ing] and promulgat[ing] religious beliefs.” The Supreme Court, however, ruled in favor of the city. Writing for the 5-4 majority, Chief Justice Warren Burger explained that, when viewed in the context of the full display, the crèche satisfied the so-called Lemon test, a three-part test put forward by the court in 1971 to assess potential establishment clause violations. Pawtucket’s nativity scene could pass the test, according to the majority, because it served a secular purpose (“to celebrate the Holiday and to depict the origins of that Holiday”); did not significantly benefit a faith group; and did not lead to “excessive entanglement” between church and state.

Burger emphasized that the establishment clause leaves room for the recognition of religious teachings and symbols in public life. How else, he asked, can you explain the First Congress’ decision to fund chaplains for the House and Senate? Or faith-based décor in the Supreme Court? “The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments,” he wrote.

In a concurring opinion, Justice Sandra Day O’Connor outlined a proposed adjustment to the Lemon test centered on the message conveyed by the challenged government action. In establishment clause cases, she contended, courts must reflect on whether the government intended or appeared to endorse one faith group at the expense of others and, in that way, made some people feel like “outsiders, not full members of the political community.” In the case of Pawtucket’s display, O’Connor wrote, “[t]he evident purpose of including the creche in the larger display was not promotion of the religious content of the creche, but celebration of the public holiday through its traditional symbols.”

In a dissenting opinion joined by all his fellow dissenters, Justice William Brennan wrote that the majority had perhaps reached the result it did “because the Christmas holiday seems so familiar and agreeable” and out of a desire not “to disturb a community’s chosen method of celebrating such an agreeable holiday.” A nativity scene is “distinctively sectarian,” he wrote, and “it is plainly contrary to the purposes and values of the Establishment Clause” to allow a government to include it in a holiday display.

Justice Harry Blackmun wrote a separate dissent, in which he called the court’s opinion a pyrrhic victory for the city and for Christians who support such nativity scenes. “The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part,” Blackmun wrote.

A solo nativity scene and menorah with a tree

In his dissent in Lynch, Brennan had also noted that the court’s opinion was narrow and left room for future conflict over other holiday displays. As he predicted, the court was soon asked to return to the topic, and it agreed to do so in County of Allegheny v. ACLU in 1989.

In this case, the court considered two displays on public property in downtown Pittsburgh: a crèche in the Allegheny County Courthouse and a menorah outside the City-County Building next to a decorated Christmas tree. The nativity scene included an angel with a banner that said, “Gloria in Excelsis Deo!,” which means “Glory to God in the Highest!” The court of appeals held that the displays violated the establishment clause.

At the Supreme Court, six justices said the menorah was permissible, but five justices said the nativity scene was not.

The Pittsburgh crèche, according to the majority, violated the establishment clause because it stood alone and included a sign with a clearly Christian message. “The government may acknowledge Christmas as a cultural phenomenon, but, under the First Amendment, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus,” wrote Blackmun for the court. The menorah, on the other hand, was part of a pluralistic celebration of the holiday season, because it stood next to a Christmas tree and a sign “declaring the city’s ‘salute to liberty.’”

As he had in Lynch, Brennan took issue with the majority’s conclusion that religious objects can become less religious if they keep certain company. He, along with Justices John Paul Stevens and Thurgood Marshall, agreed that the Pittsburgh crèche violated the establishment clause, but they argued that the menorah did, too. “The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in my view, is all that need be said,” Brennan wrote.

Four other justices – Chief Justice William Rehnquist and Justices Anthony Kennedy, Byron White, and Antonin Scalia – argued that neither the menorah nor the crèche violated the establishment clause. Writing for these justices, Kennedy contended that both objects “are purely passive symbols of religious holidays,” not part of an active effort to convert passersby. He further asserted that the majority’s “view of the Establishment Clause reflects an unjustified hostility toward religion.”

The “reindeer rule”

Today, the court’s two decisions on nativity scenes are often summarized with the phrases “reindeer rule” or “three plastic animals rule.” That refers to the justices’ focus on the context of a given religious display and its conclusion that the crèche in Pittsburgh was a problem because it stood alone (as opposed to the crèche in Lynch, which had a reindeer and other secular Christmas items next to it).

Although the reindeer rule is a simple concept, disputes over nativity displays continue to crop up, for several reasons.

For one thing, the two rulings from the 1980s were quite focused on the specific situations in Pawtucket and Pittsburgh. They’re difficult to apply when new issues emerge, such as whether an ad on public buses can feature a nativity scene or whether the Satanic Temple must be allowed to participate in a diverse holiday display.

For another, the court’s approach to establishment clause cases has shifted over the past four decades. Rather than use the three-part Lemon test, the court now typically looks to history and tradition to determine whether a certain type of church-state entanglement is allowed by the establishment clause.

The questions raised – and answers offered – in these crèche cases are significant throughout the year, not just when nativity scenes appear in the town square. The establishment clause is also at the center of some of today’s most pressing disputes, including battles over Ten Commandments displays in public school classrooms.