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Legatus Magazine

Cover Story
Thomas Olp | author
Dec 01, 2019
Filed under Culture of Life

Christ at the capitol: Why government must welcome the Christmas Nativity

There is a huge misconception about separation of church and state, especially pertaining to Christmas Nativities. Those claiming offense by displays of the Biblical account of Jesus’ birth often cry foul, and government officials regularly deny applications for scenes depicting the Holy Family on public property.

Christmas 2019 marks the 35th year for the “resurrected” Nativity on Chicago’s Daley Plaza. In 1984, when government officials nearly shut it down, a lawsuit had to be filed to protect the Nativity scene and prevent physical destruction of the life-sized Holy Family statues. The free speech rights of Christians to proclaim their faith in public prevailed when the late Chief U.S. District Judge James B. Parsons enjoined the authorities from discriminating against religious expression at this venue where political rallies were regularly held.

The American Nativity Scene assists in placing crèches around the country. In 2012, they were denied application to add a crèche to the winter holiday display in Arlington Heights, a northwest Chicago suburb. The seasonal exhibit — installed, funded, and sponsored by the village annually since 1991 — showcased numerous scenes, including Chanukah dreidels. The Thomas More Society informed village and park leadership of their constitutional obligation to administer this traditional public forum without discrimination against religious speech. Eventually, the joyful scene of Jesus Christ’s birth was displayed in this public forum and religious freedom triumphed.

In Franklin County, Indiana, the American Civil Liberties Union and the Freedom From Religion Foundation challenged the privately funded display of a 50-year-old Nativity scene on the courthouse lawn. Joined by the Satanic Temple, they tried to have the traditional Christmas decoration ousted – with two separate lawsuits, in December 2014 and March 2015. The case was settled in December 2015 in favor of retaining the display.

Each case ended with the triumph of religious freedom. Religious speech is no less valuable or protected than nonreligious speech under the First Amendment, and that includes the expression of faith by private citizens via a Christmas Nativity display in a traditional public forum, such as a statehouse rotunda, county lawn, or town square. Currently, the American Nativity Scene sponsors Nativities at 19 state capitols and additional government locations in 36 states.

Attacks on the Nativity, both socially and legally, are now commonplace. The Thomas More Society and other public interest law firms regularly defend the rights of individuals to include their faith in their day-to-day lives, and to display symbols of that faith in the public square.

Many erroneously assume that a city or town is prohibited from sponsoring a holiday display. The law is clear. Government entities may erect and maintain celebrations of the Christmas holiday, including Nativities, as long as the crèche’s purpose is not to promote its religious content, and it is placed in context with other symbols of the season as part of an effort to celebrate the public Christmas holiday through traditional symbols. Private groups may utilize public space if it is made available by government for events involving non-religious expression.

Challenges to public expression of Christian faith can be expected to escalate. While deeply held personal beliefs are at the root of the desire to share the true meaning of Christmas, it is never the government’s role to endorse or support such. The focus must always be on the right to express one’s beliefs in public. Believers should be ready to address an intolerance of Christianity, despite a demand that all else be tolerated, and hold full confidence in the fact that these displays, privately funded and sponsored, are clothed and armored with the full protection of the First Amendment of our U.S. Constitution.

Those interested in setting up a large Nativity scene in a public space at no cost can visit:

THOMAS OLP is vice president and senior counsel at the Thomas More Society ( a not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty. Educated at Georgetown University and The Catholic University of America Columbus School of Law, Tom’s early practice revolved around labor and employment law and litigation in the nation’s capital. He has been with the Thomas More Society since 2007.


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