Knowing Your Rights in the Public Square

Throughout the year, and particularly during the Christmas season, members of our communities make preparations for the celebration of the holidays by decorating the public streets, sidewalks and parks with a variety of cheerful and festive holiday decorations. Many will also wish to express the religious origins of the Christmas holiday season by erecting nativity scenes and menorahs.

The First Amendment to the United States Constitution protects the rights of citizens, civic groups, and churches to erect private religious displays in parks, town squares, and public plazas; i.e., to engage in religious speech in a "public forum."

In one of the leading First Amendment cases, the Supreme Court affirmed the long-standing principle that a religious display, such as a nativity scene, is private expression, and therefore protected (Pinette, 115 S. Ct. at 2446). Over the past several years all of the federal judicial circuits ruling on this issue have upheld the rights of private citizens to erect religious holiday displays in a public forum.

Please understand that the rulings of the United States Supreme Court are binding upon every state. Thus, in parks, town squares, plazas -- and even government buildings which have been opened up for public expression -- citizens, civic groups and churches can erect private religious displays without running afoul of Establishment Clause concerns, or violating the "separation of church and state."

Here are answers to commonly asked questions dealing with the important issues of freedom of speech and religion.

What is a public forum?

The United States Supreme Court has identified three types of public property for First Amendment expressive purposes: the traditional public forum such as streets, sidewalks, and parks; the open or designated public forum such as a town square, state owned facility, or community centers; and, the non-public forum such as a high school or gymnasium not opened to public use.

Does the "separation of church and state" forbid religious displays on government property?

No. Some officials mistakenly believe that the Constitution mandates that no religious activity can take place on public property -- even when private citizens are involved. The Supreme Court, however, has repeatedly addressed this area of confusion and has consistently ruled that the Establishment Clause does not require a state entity to exclude private religious speech from a public forum.

Haven't other Supreme Court decisions held that private religious displays are not allowed on government property?

No. Despite continual clear guidance from the United States Supreme Court, some persons or special interest groups, nevertheless, attempt to persuade public officials that they must exclude private religious speech. These individuals or groups may attempt to persuade you by mentioning two other Supreme Court cases: Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989). Any mention of these cases to justify prohibiting private citizens from erecting religious holiday displays in traditional or open public forums is misleading and erroneous.

This information should help clarify the rights of private citizens to erect religious displays in public parks and other public forums.