Guest post from Nicholas Mignanelli, University of Miami
“It was the Yuletide, that men call Christmas though they know in their hearts it is older than Bethlehem and Babylon, older than Memphis and mankind.” –H. P. Lovecraft, The Festival, Weird Tales, Jan. 1925, at 169.
The following bibliography is derived from a book display I created at the University of Miami Law Library, an effort to make my students think about the way the law affects every aspect of life—even the holiday season. The constitutionality of religious-themed holiday displays on public property has been a contentious legal issue for the past 40 years. It is, in fact, a controversy that has produced three U.S. Supreme Court decisions, several books, and countless law journal articles, many of which are collected below.
This bibliography is incomplete because, as my mentor’s mentor Marian Gould Gallagher is reported to have said, “the only worthwhile bibliography is an annotated one.” If time permits, perhaps I will annotate the below citations next December and submit the annotated version for publication that summer. I will do so in hopes that the offprints will be ready by the following December, so that I can give them as Christmas, Hanukkah, Kwanzaa, and Winter Solstice presents to my grateful family and friends.
I. Primary Sources
A. Constitutional Provisions
U.S. Const. amend I, cl. 1. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”) (Establishment Clause).
U.S. CONST. amend XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”) (Due Process Clause of the Fourteenth Amendment).
B. Case Law
Everson v. Board of Education, 330 U.S. 1 (1947) (incorporating the Establishment Clause through the Due Process Clause of the Fourteen Amendment).
Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishing test to determine whether legislation concerning religion violates the Establishment Clause).
Lynch v. Donnelly, 465 U.S. 668 (1984) (crèche at issue).
Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985) (affirming, by an equally divided Court, McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984) (crèche at issue)).
County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989) (crèche and menorah at issue).
American Civil Liberties Union of New Jersey v. Schundler, 168 F.3d 92 (3d Cir.), cert. denied, 520 U.S. 1265 (1999) (crèche, menorah, and Christmas tree at issue) (majority opinion written by then-Circuit Judge Samuel Alito).
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).
Van Orden v. Perry, 545 U.S. 677 (2005).
Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
Salazar v. Buono, 559 U.S. 700 (2010).
American Legion v. American Humanist Association, 588 U.S. ___, 139 S. Ct. 2067 (2019).
II. Secondary Sources
Wayne Swanson, The Christ Child Goes to Court (1992).
Albert J. Menendez, The December Wars: Religious Symbols and Ceremonies in the Public Square (1993).
Ursula Furi-Perry, The Little Book of Holiday Law (2013).
B. Select Scholarly Articles
Jonathan B. Chase, Litigating A Nativity Scene Case, 24 St. Louis U. L.J. 237 (1980).
Sidney Mills Rogers III, Case Note, Lynch v. Donnelly: Our Christmas Will Be Merry Still, 36Mercer L. Rev. 409 (1984).
Norman Dorsen & Charles Sims, The Nativity Scene Case: An Error of Judgment, 1985 U. Ill. L. Rev. 837.
David C. Fairchild, Lynch v. Donnelly: The Case for the Creche, 29 St. Louis U. L.J. 459 (1985).
David M. Cobin, Creches, Christmas Trees and Menorahs: Weeds Growing in Roger Williams’ Garden, 1990 Wisc. L. Rev. 1597.
George M. Janocsko, Beyond the Plastic Reindeer Rule: The Curious Case of County of Allegheny v. American Civil Liberties Union, 28 Duq. L. Rev. 445 (1990).
Richard A. Lacroix, Comment, County of Allegheny v. American Civil Liberties Union: How the Bench Stole Christmas, 25 New England L. Rev. 523 (1990).
Laura Ahn, Case Note, This Is Not a Crèche, 107 Yale L.J. 1969 (1998).
Jennifer H. Greenhalgh, Comment, The Establishment Clause and Government Religious Displays: The Court That Stole Christmas, 15 Touro L. Rev. 1053 (1999).
B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 Duke L.J. 705 (2010).
Okay, so I do not want this bibliography to get too scholarly, but I just want to say that I think the Third Circuit’s ruling in Schundler is a good indication of how the Supreme Court, as currently constituted, would rule in future cases involving religious-themed holiday displays on public property. That’s it. That’s the scholarly analysis.
Happy Holidays to all, and to all a good night! See Account of a Visit From St. Nicholas, Troy Sentinel, Dec. 23, 1823, at 3.