Seven Christmas claims about the public square, checked against the law

Every December, the same two armies march out of their holiday bunkers and meet in the town square. One army is certain that Christmas has been outlawed. The other is certain that a nativity scene on the courthouse lawn is the first step to a theocracy. Both armies have cable segments, both have email chains, and both are wrong about a startling amount of the law.

Folks, I love Christmas. I also love a good fact-check, and I especially love a fact-check that bites the people who agree with me, because that is how you know it is honest. So here is the deal. Seven claims, each one stated as people actually say it, each one tested against the cases and the statutes, and each one given a verdict. I will tell you where our side overreaches. I will tell you where the other side does. And I will tell you what the Supreme Court did in 2022 that changed the whole map.

A word on method before we start. A claim about the law is a claim about a text, a case or a date. If I cannot point to the text, the case or the date, I will not make the claim. Where the law depends on facts I do not have, I will say so and send you to the source.

Claim one: "Christmas has always been celebrated in America"

Verdict: false, and the people who proved it wrong were the Puritans.

Here is a fun one for the family dinner. In 1659 the General Court of Massachusetts passed a law that fined anyone five shillings for observing Christmas by feasting, by abstaining from work, or by anything of the kind. The law stayed on the books until 1681. The Puritans were the original holiday-ban crowd, and they had a very modern sense of how much fun everyone else should be allowed to have.

The point is not that the Puritans were silly, though a little ribbing is deserved. The point is that the story of Christmas in America is not a straight line from the Mayflower to the mall. It was celebrated widely in the Southern colonies and in the Middle colonies, ignored or banned in parts of New England, and became a general American holiday in the nineteenth century. When somebody says "this country has always done it this way," ask them which way, and which part of the country.

Claim two: "The government can't recognize Christmas at all"

Verdict: false, and Congress settled it in 1870.

On June 28, 1870, Congress passed and President Grant signed a law that made Christmas Day, New Year's Day and Independence Day legal holidays in the District of Columbia, along with any day the President named for thanksgiving. Later laws extended the arrangement to federal employees everywhere. So when the federal government closes its offices on December 25, it is acting under a statute that has been on the books since the age of Reconstruction.

Did the Supreme Court ever strike that down? No. Did anyone seriously try? Not that I can find. The courts have treated a Christmas holiday as a day off work that happens to share a name with a religious feast, and they have said as much in several decisions. The argument runs like this: a government may recognize that a very large number of citizens will be at church or at home on that day, and that a closed post office is simply sensible.

So, the claim that "the Constitution forbids the government from acknowledging Christmas" fails against one hundred and fifty years of statute and practice. It is not a close call.

Claim three: "A nativity scene on public property is always illegal"

Verdict: false, but with a catch. This one needs the two cases, because the Court gave two different answers in five years and the difference is the whole lesson.

In Lynch v. Donnelly (1984), the city of Pawtucket, Rhode Island, put up a holiday display in a park owned by a nonprofit group. It included a Santa Claus house, reindeer, a Christmas tree, a banner reading "Seasons Greetings," and a crèche, which is the nativity scene. The Court held, 5 to 4, that the display did not violate the Establishment Clause. Chief Justice Burger wrote that the display as a whole had a legitimate secular purpose, marking a national holiday, and that the Constitution does not require a complete separation of church and state. Justice O'Connor wrote a concurrence that mattered more over the long run. She proposed asking whether the government was endorsing religion in a way that tells nonbelievers they are outsiders. That question became known as the endorsement test.

Five years later, in County of Allegheny v. ACLU (1989), the Court looked at two displays in Pittsburgh. One was a crèche alone on the grand staircase of the county courthouse, with a banner proclaiming "Gloria in Excelsis Deo." The Court held, by a narrow margin, that the crèche violated the Establishment Clause. The other was a large Christmas tree and a menorah outside the city-county building, with a sign saluting liberty. The Court held that display permissible. The reasoning was that a lone nativity scene in the most prominent spot of a courthouse looked like government endorsement, while the tree, the menorah and the sign together read as a broader holiday celebration.

Here is where it got a little absurd, and I say that with affection for the justices. The law, for a stretch of decades, came down to a kind of counting exercise. Count the reindeer. Count the candy canes. Is there a Santa? If the plastic Frosty is large enough, the manger gets to stay. Picture a town clerk with a clipboard, tallying plastic reindeer against shepherds to decide whether the Constitution is satisfied. You could not write a better parody, and the law more or less asked for it.

The catch, and it is a real one, is that the old counting game is now much less important than it used to be, for reasons I will come to in claim six. For the moment, remember the sensible bottom line: a government may mark the holiday, and a nativity scene in a larger holiday display has survived challenge in the Supreme Court.

Claim four: "It is illegal to say 'Merry Christmas' at work or school"

Verdict: false for private citizens and students, and more complicated for public employees speaking in their official role.

Nothing in the Constitution stops a private person from wishing a neighbor a merry Christmas. The First Amendment restrains the government, not your neighbor, and certainly not you. A private employer can have a policy about what employees say to customers, and that is a matter of workplace rules and, in some cases, of civil rights law on religious accommodation, not of the Establishment Clause. If your employer's policy seems to cross a line, the place to check is the guidance from the Equal Employment Opportunity Commission and a lawyer who handles employment law, and I am not that lawyer.

For students in public schools, the rule has long been that a student does not shed constitutional rights at the schoolhouse gate. The Court said so in Tinker v. Des Moines in 1969. In general, students may express religious beliefs in their own speech, in assignments, and in the many forms of private expression the school allows, so long as they are not disrupting class and the school is not speaking for them. A student who writes "Merry Christmas" on a card for classmates has not established a religion.

For public employees, the issue is who is speaking. A teacher standing in front of a class on school time is, in a sense, speaking for the school. A teacher greeting a colleague in the hallway is a different matter. Courts have drawn lines here, and they are not tidy. My advice to any employee with a real question is to read the school district's policy and ask a lawyer, because "somebody told me on a talk show" is not a legal opinion.

The headline claim, however, that saying the words is illegal, fails. The law protects the greeting far more than the email chain suggests.

Claim five: "Schools can't play religious music at the holiday concert"

Verdict: false, as a general rule, and the reason is the difference between teaching about something and preaching it.

Think about a high school choir program. A huge share of the great choral repertoire in the Western tradition is sacred music. Take that out and you have deleted Bach, Handel, Mozart's Requiem and half of what a serious chorus is supposed to learn. The Supreme Court has said, in Abington School District v. Schempp (1963), that the study of the Bible or of religion, when presented as part of a secular program of education, can be consistent with the First Amendment. The same logic has been applied by lower courts to music: a concert that includes sacred pieces for their musical and cultural value is not a worship service.

What the Court has not allowed is a school sponsoring prayer or devotional exercises. In Engel v. Vitale (1962), a state-written school prayer was struck down. In Schempp a year later, required Bible reading as a devotional exercise went too. The line is the same in both: the school may teach, perform and study, and it may not conduct worship or push students into it.

So a carol in a December concert is lawful. A teacher leading the class in a prayer is not. The sensible middle, and the one that most schools follow, is a balanced program with a mix of traditions and a clear educational purpose. Not because the Constitution demands that every program be a United Nations assembly, but because it keeps the whole thing safely on the right side of that line.

Claim six: "The courts still decide these cases by the endorsement test"

Verdict: no longer, and this is the biggest change in the law of the public square in half a century.

O'Connor's endorsement test grew in influence through the 1990s and 2000s. Judges asked what a "reasonable observer" would think of the display. It was a flexible standard, and flexible standards, as every lawyer knows, mean that the outcome depends on which judge you draw.

In Kennedy v. Bremerton School District (2022), the Supreme Court held 6 to 3 that a public high school football coach who prayed quietly on the field after games was protected by the Free Exercise and Free Speech Clauses. In the course of that opinion, Justice Gorsuch wrote that the Court had long ago abandoned the Lemon test and its endorsement offshoot, and that the Establishment Clause must be interpreted by reference to historical practices and understandings. He said that the clause does not compel the government to purge from public life every trace of religion.

Think of what that does to the Christmas question. If the test is history and tradition rather than a judge's imagination of a reasonable observer's feelings, then a display with deep roots in the American holiday tradition has a much stronger footing. The Court said something similar in American Legion v. American Humanist Association in 2019, which approved a century-old war memorial cross on public land. Read together, the two decisions leave little room for the old idea that a crèche or a menorah is presumptively unconstitutional unless the plastic reindeer outnumber the shepherds.

Does that mean any display is now safe? No. The law still forbids coercion, and a government that forced a person to take part in a religious ceremony, or that discriminated among faiths in running a public forum, would be in trouble under the old rules and the new ones. What changed is the way courts ask the question, and in my view they now ask a better one.

Claim seven: "The other side's version: the Constitution requires the government to display Christmas"

Verdict: also false, and I would be a poor commentator if I only checked the claims that annoy my opponents.

Some of my fellow conservatives say that the First Amendment demands a nativity scene on the town green, and that a town that skips it has violated somebody's rights. That is overreach. The Establishment Clause permits more than the old test allowed. It does not turn every permission into a command. A town can choose to put up a crèche, a menorah, a tree, all three, or none, and the voters can have the fight in the usual way: at the town meeting, at the ballot box, at the budget hearing.

The right way to see it is as federalism in miniature. The Constitution sets a floor and a ceiling. Inside those walls, the people of a town get to decide what their public square looks like, which is how a free people ought to settle a question like this. If your town has a December display you like, say so at a council meeting. If it has none and you want one, ask for one, and bring a plan for how it will be funded and who will tend it. Self-government is not a spectator sport.

One more point for fairness. If a town opens its public square to private displays of all kinds, it must treat them even-handedly. A town that welcomes a secular display and turns away a religious one because of its message has run into the Free Speech Clause, a point the Court made in cases such as Capitol Square Review Board v. Pinette (1995), which involved a private group's cross in a state-owned plaza. The remedy for a crowded square is equal access, not a purge.

What the seven verdicts add up to

Run the list and a pattern shows up.

1. The ban stories are mostly myths. Nobody has outlawed the words, the carols or the greeting.
2. The mandate stories are myths too. The Constitution lets towns choose, and it does not choose for them.
3. The real line, the one the Court has drawn since Engel and Schempp, is coercion. The government may not make you worship, and it may not rig the square against a faith.
4. The test the courts use has moved toward history and tradition, and the old counting of reindeer is mostly retired.

Here is the Founding anchor. In September 1789 the First Congress approved the amendments that include the First Amendment, and within days it asked President Washington to proclaim a national day of thanksgiving to God. The men who wrote "Congress shall make no law respecting an establishment of religion" did not think that ruled out public acknowledgment of the Almighty. They thought it ruled out a national church. Read their words that way and most of the December wars dissolve.

If you want to keep going, there is a lot in the neighboring posts. The story of the national motto is in From a Civil War coin to the Pledge, how 'under God' entered public life. The Court's long reading of the clause starts with Everson v. Board of Education, the school bus case that changed church and state, and the monument case I mentioned is in The Bladensburg Peace Cross, a World War I memorial and a 7-2 ruling. The proclamation tradition is in Washington's 1789 and Lincoln's 1863 Thanksgiving proclamations side by side. And for what the First Amendment's words actually say, one phrase at a time, try Sixteen words on religion in the First Amendment, read phrase by phrase. The site's Constitution page carries the text itself.

The case in brief

1. Christmas was banned once in America, by Puritans in 1659, and has been a federal holiday under a statute signed in 1870. The government has recognized it for a century and a half.
2. A nativity scene on public property is neither always lawful nor always unlawful. Lynch (1984) allowed one inside a larger display, and Allegheny (1989) struck down a lone crèche in a courthouse while allowing a tree and menorah.
3. Saying "Merry Christmas" is lawful for citizens and students, and sacred music in a school concert is lawful when it serves education, while school-led prayer is not.
4. After Kennedy v. Bremerton (2022), courts read the Establishment Clause through history and tradition, not through the endorsement test.
5. The Constitution neither bans Christmas from the square nor commands it. It leaves the choice to the people, who should make it by argument and by vote.

What you can do: read your town's policy on holiday displays on its website, and speak at the next council meeting if you want it changed.