The "Lemon Test" Is Dead
The "Lemon Test" was a three-part test developed by the U.S. Supreme Court in 1971 (Lemon v. Kurtzman) to evaluate if government actions would favor one religion over another and violate the Establishment Clause. The test was designed to be a universal way to resolve cases arising under the First Amendment Establishment Clause, and whether they involved government expression of religious speech, such as legislative prayer, public funding that flows to religious groups, religious displays, etc.

For 51 years, the "Lemon Test" had been used by courts to distort the Free Exercise Clause and the Free Speech Clause to remove religious symbols and displays from the public square. However, all that changed in 2022 when the U.S. Supreme Court eliminated the "Lemon Test" over a series of rulings favoring a new "test" of "historical practices and understandings" to determine the extent of religious expression in the public square.

On May 2, 2022, Liberty Counsel received a 9-0 decision by the U.S Supreme Court in Shurtleff v. City of Boston which struck down censorship of Christian viewpoints within the public forum the City of Boston had created for flag raisings. The High Court unanimously ruled that the City of Boston violated the Constitution by censoring a private flag in a public forum open to "all applicants" merely because the application referred to it as a "Christian flag." The High Court soundly rejected Boston's use of the "Lemon Test" to justify censoring Christian viewpoints in public.

The Shurtleff case paved the way for a later decision in Kennedy v. Bremerton School District, where Liberty Counsel argued in an amicus brief that the school could not suppress Coach Joe Kennedy's private religious speech to silently pray on the football field after games. On June 27, 2022, the U.S. Supreme Court ruled 6-3 in favor of Coach Kennedy. Relying on both the First Amendment Free Speech and Free Exercise Clauses, the High Court ruled that the Bremerton School District violated Coach Kennedy's constitutional rights by firing him for prayer on the football field after games. In the ruling, the High Court buried the court-made "Lemon Test," citing Liberty Counsel's decision in Shurtleff involving the Christian flag.

In place of the "Lemon Test," the High Court instituted a new "test" of "historical practices and understandings" meant to resolve constitutional conflicts through the original meanings of the Constitution's text and common historical practices.

Today, the law is clear. The First Amendment does not permit any city, state, or the federal government to eliminate religious viewpoints regarding a federally and state recognized holiday.

Christmas Expression in Public Is Allowed

Liberty Counsel has addressed and overturned hundreds of attempts to censor Christmas in the private and public sector. These instances include:

• Retracting unconstitutional bans on Christmas holiday symbols, decorations, and expressions for city employees within public buildings.
   
• Lifting bans on public school students wearing red and green colors and acknowledging Christ's birth in their classrooms.
   
• Restoring Nativity scenes that had been banned from public property.
   
• Returning Christmas carols to seniors who were silenced in their nursing homes.

With the death of the "Lemon Test," a multitude of questions still arise about whether it is legal to include Christmas symbols, decorations, and expressions in public to celebrate the season.

Nativity scenes that are publicly sponsored and displayed on public property are constitutional under the "history and traditions" test now recognized by the U.S. Supreme Court. These displays can, but are not required to, include a secular symbol of the holiday. Privately sponsored Nativity scenes or religious symbols are also permissible on public property that has been opened to the public for expressive activity. No secular symbol is necessary.

In government spaces, the First Amendment and Free Exercise Clause protects Christmas holiday symbols, decorations, and expressions by employees.

As for public schools, they are not religion-free zones that must be devoid of Christmas expression. Classroom discussion of the religious aspects of the holidays is permissible. A holiday display in a classroom may include a Nativity scene or other religious imagery. Public school music teachers have the freedom to include both religious and secular Christmas songs in their musical programs. A choral performance may include religious songs and does not have to contain an equal number of religious and secular music. If the students select their own songs independent of the direction of school officials, then there is no requirement that the songs include secular songs.

Students may distribute religious Christmas cards to their classmates during noninstructional time, before or after school or between classes. If the students are not required to dress in uniform, then they may wear clothing with religious words or symbols or don religious jewelry.

Recently, Liberty Counsel sent demand letters to the City of Wauwatosa, Wisconsin as well as Holt Public School District in Michigan demanding they rescind their unconstitutional bans on Christmas holiday symbols, decorations, and expression within public buildings.

While the City of Wauwatosa quickly backpedaled and rescinded their ban, they originally advised for decorations to be "neutral" without "favoring any particular belief system." As for Holt Public Schools, it has currently issued directives focused on "Decentering Christmas" and "Racial Justice" that not only prohibits the celebration of the Christmas holiday through symbols, decorations, and expression, but promotes hostility on the basis of religion and race.

Christmas holiday bans such as these violate the U.S. Constitution and the Free Speech and Exercise Clauses by showing hostility toward Christianity. It does not matter what the motive might be, the First Amendment does not permit government entities to eliminate the traditional elements, symbols, or expression of a federally and state recognized holiday such as Christmas.

Learn more in Liberty Counsel's legal memorandum detailing how courts and our Constitution preserve the freedom to celebrate Christmas and religious holidays.

As a result of unconstitutional censorship of religious holidays, Liberty Counsel launched its annual Friend or Foe Christmas Campaign in 2003 designed to educate and, when necessary, litigate to ensure religious viewpoints are not censored from Christmas and holiday themes. In addition, the campaign also provides a Naughty and Nice List that catalogs some of the stores that are censoring Christmas and some that are publicly celebrating it.

Liberty Counsel Founder and Chairman Mat Staver said, "The First Amendment protects religious viewpoints from being censored by the government. Religious symbols and displays consistent with the Christmas holiday season are appropriate and constitutional on public property, including in public schools. Christmas is a recognized federal and state holiday. It makes no sense to pretend it does not exist or that the holiday should be stripped of Christian symbols and themes."

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SOURCE Liberty Counsel

CONTACT: Mat Staver, 407-875-1776, [email protected]