The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Christmas Displays Spark First Amendment Fight in Loudoun County

For many Americans, the Christmas season is synonymous with a big, jolly man dressed in red, a pile of presents stuffed under a sparkling tree, and fun-filled times with loved ones and friends.  In Loudoun County, however, an entirely different and far less holly-jolly set of practices are beginning to encroach on the good-spirited traditions of the season.  Rather than making gingerbread houses and planning caroling with neighbors, many residents of the county have spent considerable time over the last few years arguing over Christmas displays.  In fact, the debate has grown so heated in the past that it has not only gained significant press coverage, but it prompted local officials to convene a number of special meetings and town discussions.

In each of these town-hall meetings, the first of which was in 2009, the issue at hand was whether residents should be allowed to erect Christmas-themed displays on the lawn of the Loudoun County Courthouse.  On the one hand, proponents of the displays argue that they are simply expressing their holiday cheer on public property and that, as a result, their right to do so is protected as a matter of free speech.  Others are quick to point out that the groups that erect the displays–most notably the Knights of Columbus–have tradition on their side, as they have been placing Christmas displays there for the past 50 years.

Those that oppose the notion of Christmas-themed displays, however, do not buy in to this logic.  For local atheist groups and other non-Christian residents, it is difficult to see the consistent display of Christmas symbols on government property as anything other than state sponsorship of religion.  It is this logic, in fact, that drove local residents to complain to the Facilities and Grounds Committee of the Loudoun County Courthouse in the first place.  In the two years since, the County’s stance on the issue has transformed numerous times.  The current policy states that, while erecting displays on the Courthouse lawn is allowed, permits to do so will only be granted to the first ten applicants each year.  As this year’s displays demonstrate, what results is a cacophony of unique displays that are representative of a variety of religious views, including atheism.

Presumably, since a variety of viewpoints are expressed under the current system, it would be safe to assume that a reasonable compromise has been reached.  Unfortunately, one of this year’s displays (a crucified skeleton in a Santa suit that was later torn down) seems to have struck a chord; the issue is again being debated throughout the county.  Given all of this, I thought it might be helpful to take a quick look at this issue from a legal prospective.  Regardless of whether you are religious, having a better understanding of the logical rationale surrounding the Board of Supervisors’ decisions might help to shed some much needed light on this debate.

All religious issues aside, the debate at hand is really one over the proper interpretation of the First Amendment to the U.S. Constitution, which states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  While proponents of the displays cite the Amendment’s Free Speech Clause as justification for placing the signs up each year, opposition groups look for similar support in the Amendment’s Freedom of Religion Clause.  Needless to say, the conflict between these two clauses is not new, nor is it one that has been ignored by the courts.  However, in sorting through Supreme Court decisions on the issue, I have found a relatively articulate passage that I think speaks to the heart of the current debate.  An amalgamation of numerous decisions, it reads as follows:

“The First Amendment does not guarantee access to property simply because it is owned or controlled by the government. The crucial question is whether the manner of expression is basically compatible with the normal activities of a particular place at a particular time.  Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.  But if government does open non-traditional forums for expressive activities, it many not discriminate on the basis of content or viewpoint in according access.” (Emphasis added)

Additionally, when ruling as to whether religious groups should be granted access to public school facilities, the Supreme Court found that “although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes these facilities available to nonreligious student groups.”

Put into context, the Supreme Court seems to be saying that while all citizens of Loudoun do enjoy concurrent rights to free speech and freedom of religion, these rights are not immune from limitation.  Instead, one’s ability to exercise these rights can be a function of location and all locations are not created equal.  In instances where public property is being used as the platform for an expressive act (as is the case in Loudoun), the Court seems to be saying, first and foremost, that all government-run properties are not created equal and that the government is not obligated to make all such facilities available to the public. In other words, while the government may not be able to regulate expressive acts in open forums such as town streets and parks, it can regulate such acts in less-open areas, such as state-run buildings and governmental properties.  However, should the decision be made to open these properties to expressive activities, the Court is very clear that it must be done in a manner that does not “discriminate on the basis of content or viewpoint.”  Likewise, the opportunity to use the facility or property cannot be restricted based on religious preference.  Rather, if a property is made available to a religious group, it must be made available in an equal and non-exclusive manner to any interested non-religious groups, and vice versa.

Given this information, I have to say that I find the Loudoun County Board of Supervisors’ current system of allocating space for holiday themes rather well-thought-out and fair.  By granting permits for displays to the first ten groups to apply, the County is guaranteeing equivalent access to the space regardless of religion or content.  In doing so, the county is promoting the notions of fairness and equality for all, both of which are fitting sentiments to espouse during the Christmas season.  Unfortunately, it seems that many of the citizens of Loudoun have lost sight of the importance of these values, not to mention the true meaning of the holiday.  I have probably said this fewer times than Santa has reindeer, but I have to admit it: I think the government got it right on this one…

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