LTC 232-2019 Item R9P, January 16, 2019; Municipal Holiday Decorations and Lighting MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LETTER TO COMMISSION
LTC # 232-2019
TO: Mayor Dan Gelber and Members of the City Commission
Jimmy Morales, City Manager and Members of the Management Team
FROM: Raul J. Aguila, City Attorne s,,,5 ••_
DATE: April 23, 2019
SUBJECT: Item R9P, January 16, 2019; Municipal Holiday Decorations and Lighting
Issue
The extent to which religious holiday decorations may be displayed by the City of Miami Beach.
Brief Answer
A local government may display holiday decorations and/or lights, regardless of whether the
symbols/decorations/lights are associated with a religion, if there is a secular purpose.
Symbols and decorations representing various religions may be displayed as part of a secular
recognition or celebration of the holiday season, provided that the display does not endorse any
particular religion. Whether a secular purpose is served by a particular display depends upon a
case-by-case analysis.'
The following are examples of displays that have and have not been held constitutional:
Displayed Items Constitutional Case
Dl: Standalone Menorah on a Dl: No; municipality allowed Snowden v. Town of Bay Harbor
publicly owned median placement of menorah for benefit of Islands, 358 F. Supp. 2d 1178,
D2: Christmas tree next to the synagogue 1195-1200(S.D.F.L.2004)
menorah D2:Yes; reasonable observer
would have found secular purpose
Dl: Nativity scene on steps inside Dl: No; message supported County of Allegheny v.ACLU, 492
government building Christianity and placement on grand U.S. 573, 598,614(1989)
D2: Menorah, Christmas tree, sign staircase of courthouse steps
supporting liberty and holiday D2:Yes; supported secular
season celebration of holidays
Nativity scene/creche, Santa, Yes; creche did not have primary Lynch v. Donnelly,465 U.S.668,
reindeer, Christmas tree, carolers, effect of advancing religion and its 681-83(1984)
animal and clown figurines,candy- effect was indirect, remote, and
striped poles,"seasons greeting" incidental
banner
Creche, menorah, Kwanzaa Yes; display did not have the effect ACLU of New Jersey v. Schundler,
symbols, sign celebrating diversity of advancing, endorsing, or 168 F.3d 92 at 95(3d Cir. 1999)
disapproving of religion
1 Celebration of the holiday season is recognized as a secular purpose that may be achieved by
displaying multiple religious or holiday symbols, rather than a single decoration or symbol. In the leading
cases addressing this issue, it has been held that the display of a menorah and a Christmas tree/nativity
scene or crèche together are sufficient to withstand constitutional challenge under an Establishment
Clause or other constitutional claim. Examples of constitutional and unconstitutional displays are set forth
in the chart herein.
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Discussion and Legal Analysis
I. Holiday Decorations Displayed by the Government
"A statute or practice which touches upon religion . . . must have a secular purpose." County of
Allegheny v. ACLU, 492 U.S. 573, 592 (1989). Although the purpose behind the placement and
inclusion of holiday decorations must be secular, "[t]his does not mean that the law's purpose
must be unrelated to religion . . ." Snowden v. Town of Bay Harbor Islands, 358 F. Supp. 2d
1178, 1197 (S.D.F.L. 2004). The focus of the "purpose inquiry" into a governmental action will
be whether the "governmental decision maker" abandons neutrality to promote a particular point
of religion. Id. Further, "[a] religious purpose alone is not enough to invalidate a governmental
act, but the secular purpose must predominate." Id. The government's stated intent for the
disputed practice will also be relevant to its purpose and if there is no evidence of intent, the
government may supply one at a later time. Id. (citing King v. Richmond County, Georgia, 331
F.3d 1271 at 1276 (11th Cir. 2003)).
Two components of the First Amendment are implicated by municipal holiday displays: the
Establishment Clause and the Free Exercise Clause. First, under the Establishment Clause,
challenged conduct is considered by a three-prong approach and if it does not meet the criteria,
then it will be deemed unconstitutional under the Establishment Clause. This three-prong
approach was established in the case of Lemon v. Kurtzman, 403 U.S. 602 (1971), and states
that the action must: 1) have a secular purpose; 2) have as its primary effect neither the
advancement nor the inhibition of religion; 3) not create excessive governmental entanglement
with religion. Id. 612-13.
A. Establishment Clause Considerations
In Snowden, a menorah, displayed alone on public property, was ruled an endorsement of
Hanukkah and was held to be unconstitutional. Previously, the Supreme Court reached the
same conclusion where only a nativity scene was displayed. Allegheny, 492 U.S. 573. In
Snowden, the court found that the original intent of displaying the menorah was primarily to
celebrate Hanukkah and, therefore, a religious purpose predominated over any secular purpose
in the display of the decorations. However, the Snowden court concluded that there was a
secular purpose for the Town's subsequent display: a Christmas tree and menorah together,
demonstrating a secular purpose to celebrate the December holidays.
Celebration of the holiday season may be a valid secular purpose. Snowden at 1198. However,
because of the placement of a nativity scene in a central area of a city government building, the
Allegheny court noted that this placement amounted to an endorsement of a religion and was
held unconstitutional. Allegheny at 616; see also Pinette, 515 U.S. at 776 ("giving sectarian
religious speech preferential access to a forum close to the seat of government (or anywhere
else for that matter) would violate the Establishment Clause . . ."). However, the Allegheny Court
reached a different conclusion in considering a second display, also at issue in that case. The
second display, which was located outside of a municipal government building, had a menorah,
a decorated Christmas tree, and a sign which read, "[d]uring this holiday season, the city of
Pittsburgh salutes liberty. Let these festive lights remind us that we are keepers of the flame of
liberty and our legacy of freedom." Allegheny at 582. The Court reasoned that this second
display did not have the effect of endorsing religion because it served to show a more secular
message. Id. at 616-19, 632. However, had the diverse displays been determined to be a
simultaneous endorsement of Judaism and Christianity, that would have been no less
constitutionally infirm than the endorsement of Christianity alone. Id.
Even prior to the Allegheny decision, in Lynch v. Donnelly, the United States Supreme Court
concluded that a nativity scene is likely to withstand scrutiny when it is part of a broader
display of seasonal decorations. 465 U.S. 668 (1984). In addition to a nativity scene, the city
of Pawtucket displayed a representation of Santa, reindeer, a Christmas tree, carolers, figurines,
and candy-striped poles. Id. at 671. The Court reasoned that the celebration and depiction of
the origins of a holiday were secular purposes. Id. at 681.2
Furthermore, the Third Circuit has held that a display with the purpose of celebrating cultural
and ethnic diversity was constitutionally permissible. New Jersey v. Schundler, 168 F.3d 92 at
95 (3d Cir. 1999). In that case, the holiday display included a crèche, a menorah, Kwanzaa
symbols, and a sign that read, "[t]hough this display and others throughout the year, the City of
Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples." Id. at
96. Although the trial court claimed that the display was constitutionally objectionable, the Third
Circuit reversed on appeal and held that the broad display sent a message of pluralism and
endorsed the freedom to choose one's own beliefs. Id. at 107. The Third Circuit also noted that
it was unable to perceive "any meaningful constitutional distinction between the display at issue
here and those that the Supreme Court upheld in Lynch and Allegheny." Id.
B. Free Exercise Clause Considerations
Under the Free Exercise Clause, the consideration is whether a place where objects are
displayed is deemed a "public forum" for free expression. Free speech rights are most extensive
in a public forum, where government regulations of the content of expression are subject to a
"strict scrutiny" analysis, meaning that they must be narrowly drawn to serve a compelling
governmental interest. Perry Educational Assn. v. Perry Local Educator's Assn., 460 U.S. 37, 45
(1983); Susan Trevarthen & Johanna Lundgren, Merry Litigation and Happy Attorneys' Fees:
Holiday Displays on Downtown Public Property, 85 Fla. B.J. 19 at 19 (Dec. 2011).
The overarching theme is that religious items may be displayed provided there is a secular
purpose for the display. Secular symbols include a Christmas tree, a holiday banner, or a figure
of Santa Claus. In areas deemed to be a public forum for free expression, local governments
must allow private religious expression, but may prohibit persons from placing unattended
displays there or adopt other policies governing how such displays will be handled. Capital
Square Review and Advisory Board v. Pinette, 515 U.S. 753, 760 (1995); Trevarthen &
Lundgren at 19. If a city celebrates both Christmas and Hanukkah as secular holidays in its
decorative displays, then its conduct is beyond the reach of the Establishment Clause.
II. Citizens Placing Decorations on Government Property
Allowing citizens to place decorations on municipal/government property may also pose
constitutional issues with regard to the exercise of free speech. For example, in Snowden, an
orthodox Jewish synagogue maintained a menorah and held a lighting ceremony for the
menorah which was displayed on public property, but when a citizen sought to display a nativity
scene, she was met with staunch opposition. Snowden at 1195-97. Although opposition to the
display of a religious symbol may have been legitimate based on the Establishment Clause, the
town's bad faith actions towards the plaintiff in the case, and the prevention of nativity scene
display, also raised concerns with freedom of speech suppression. Id. at 1189.
"Display of the crèche is no more an advancement or endorsement of religion than the Congressional
and Executive recognition of the origins of the Holiday itself as `Christ's Mass,' or the exhibition of literally
hundreds of religious paintings in governmentally supported museums." Id. at 683.
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Another example of allowing the public to show support for the holiday season might be to
permit decorations to be displayed in an area typically reserved as a public forum, such as the
steps, or curtilage, of a city hall building. However, by allowing certain decorations, a city
government could be considered to acquiesce to the placement and/or content of each
decoration and this could pose additional issues for a local government, exposing the
municipality to unnecessary liability. Conversely, the exclusion of a religious group to meet or
organize on public property on the basis of its religious nature has been treated as an
unconstitutional viewpoint discrimination. Good News Club v. Milford Central School, 533 U.S.
98 (2001). If an area is recognized as a traditional open public forum, restrictions on speech are
subject to strict scrutiny. U.S.C.A. Const. Amend. 1.
In addition to legal liability, inviting the public to display various holiday-themed decorations at a
certain venue may invite an abundance of ancillary issues, such as maintenance and aesthetic
concerns.
Conclusion
Based upon precedents established by the U.S. Supreme Court and the Circuit Courts,
holiday displays have been determined to withstand constitutional challenge if there is a
secular purpose in their placement and display. This purpose has been determined to
exist when decorations are displayed together which aim to represent more than one
religion and/or holiday and that indicate a celebration of the holiday season as a whole.
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