Could the Supreme Court bring Christmas back into the public square?

Americans could soon be celebrating Christmas the way they did decades ago, because of cases the U.S. Supreme Court may decide in 2018 and because of President Trump’s promise to bring “Merry Christmas” back into the American mainstream. 

A resurgence of respect for Christianity in politics is already restoring legal standards concerning Christmas. Both of these together could now give the faithful a resurgent role in culture.

The Constitution’s Establishment Clause states: “Congress shall make no law respecting an establishment of religion.” Those words did not prevent Congress from passing a law many years ago recognizing Christmas as a paid federal holiday. However, the Supreme Court in the 1960s adopted a novel reinterpretation of those words, advocating strict separation between faith and public life that has plagued the law ever since.

In 1989 the high court considered the constitutionality of Christmas and Hanukkah displays in Pittsburgh, consisting of a Nativity scene in a county courthouse and a Christmas tree and menorah in the park outside. In County of Allegheny v. ACLU, a narrowly divided 5-4 Supreme Court adopted the “endorsement test.” The court found that government actions touching upon faith violate the Establishment Clause if a “reasonable observer” would conclude the government is endorsing religion.

Besides just Christmas displays, the endorsement test has barred prayers, Christmas concerts, Easter celebrations, Ten Commandments displays and even war memorials.

Applying that subjective test, the Supreme Court struck down the Nativity display, but allowed the Christmas tree and menorah to survive. The nine justices split between five separate opinions, with justices joining some parts of some opinions. The endorsement test was an unmitigated train wreck, impacting both politicians and popular attitudes.

The only coherent opinion was the four-justice dissent written by Justice Anthony Kennedy, joined by conservatives like Justice Antonin Scalia. Kennedy insisted “endorsement” was a terrible test.

Instead, Kennedy wrote that the Establishment Clause forbids only government actions that meet historical standards for officially adopting religions. Examples of this would be mandating church attendance or government appointment of church leaders. Another example would be coercing people into religious activities that violate their conscience.

The Nativity scene is fine under this standard. If you don’t like it, don’t look at it. The government is not making anyone bow before it. It coerces no one. It doesn’t mean the display is OK. It just means that the issue is one for local officials answerable to the people to decide, rather than for a federal judge.

Besides just Christmas displays, the endorsement test has barred prayers, Christmas concerts, Easter celebrations, Ten Commandments displays and even war memorials. In October, the Fourth Circuit federal appeals court struck down as a religious endorsement a century-old World War I memorial in Bladensburg, Maryland, because it prominently features a Celtic cross. This puts the constitutionality of Arlington National Cemetery in doubt.

The Supreme Court is expected to have an opportunity in early 2018 to take the Maryland case. In 2014 the justices took a major step in replacing the endorsement test with the history-and-coercion standard. Legal experts are eager to see if the justices will now go the distance.

As the Supreme Court returns to the historical understanding of the Establishment Clause and national leaders like President Trump shape the national discussion, Christmas can have a comeback in American culture.

President Trump has taken a side in the decades-long War on Christmas, promising that Americans “will start saying ‘Merry Christmas’ again!” He is fulfilling that promise through his public statements, policy pronouncements, and his judicial appointments – especially to the Supreme Court.

While Justice Neil Gorsuch is President Trump’s sole appointee to the Supreme Court so far, experts anticipate two more appointments to the high court. President Trump’s ability to win Senate confirmation of the nominee of his choice will be impacted by whether Republicans retain control of the Senate in the 2018 midterms.

But already, the president is delivering on his promise. It’s beginning to look a lot like Christmas.

Ken Klukowski is an attorney who works on religious liberty for First Liberty Institute and on constitutional interpretation for the American Civil Rights Union.