The government is permitted to create displays that recognize, and even celebrate, holidays that have religious origins or significance — so long as the displays themselves celebrate the holidays' secular rather than religious aspects. Thus, a governmental holiday display can include religious symbols, but only if the overall display promotes a secular theme and does not send the message that the government endorses or supports a particular faith, or religion generally. The presence of secular holiday symbols in addition to religious ones is crucial. A religious holiday symbol, such as a crèche (i.e., a nativity scene), is almost certainly unconstitutional if it stands alone on public property. The same is true of a display consisting wholly of different religions' holiday symbols. Only when religious holiday symbols are paired with secular symbols, and the overall display promotes a unified, secular theme — such as liberty or cultural diversity — will a holiday display pass constitutional muster.

Two U.S. Supreme Court cases involving Christmas crèche displays illustrate the distinction. The Court upheld a city's display of a creche along with a Santa Claus house, reindeer, candy-striped poles, carolers, a giant teddy bear, a wishing well, and various other, secular Christmas symbols in the city's downtown shopping district. But the Court struck down a county's display of a crèche on the main staircase inside its courthouse, where the display's only other elements were poinsettias and a banner reading, "Glory to God in the Highest." Although a sign explained that the crèche in the latter case had been placed by a private group, the Court held that this fact did not cure the violation.

In each case, what mattered was the display's context, not only in terms of the items accompanying the religious symbol, but also the display's location and connection to government. That these two cases involved the same religious holiday symbol but came out differently demonstrates that with governmental holiday displays, the specific facts of the display make all the difference.

If after reading this description of the law, you suspect a constitutional violation, please contact us and provide answers to the following questions:

Where, specifically, is the display about which you are concerned? Please explain whether it is indoors or outdoors; its location within the building, grounds, or parkland relative to entry points and other landmarks; its overall setting, etc.
Describe the components of the overall display, their placement, and their relative sizes.
Who placed the religious items in the display? If a private party placed the items, does the display identify this person or group as its owner, and if so, how?

As a general rule, the government may not display religious items on public property. That rule applies to displays of the Ten Commandments, just as it does to any other religious symbol. Thus, for example, the U.S. Supreme Court has held that it is unlawful to require the posting of the Ten Commandments in public-school classrooms.

The courts have recognized certain circumstances, however, in which the government may display the Ten Commandments on public property. Whether the display is constitutional depends on its context: why the government erected it, and how it appears to a reasonable observer.

First, the government's purpose for displaying the Commandments must be secular. To determine purpose, courts look to a variety of factors — the display's history, including government officials' statements in approving or unveiling the display; the contents and character of items on display along with the Commandments; and the facts surrounding the placement of the other items. The Supreme Court struck down Ten Commandments displays in two county courthouses, for example, even though other, secular items were posted alongside the Commandments, because of the displays' histories: the counties had initially posted the Commandments alone, during a ceremony that included a speech by a religious official; then after being sued, they posted other documents with religious references in them; and finally, the counties replaced the other documents with historical ones that lacked a clear unifying theme. Based on this context, the Supreme Court concluded that the final displays — which were entitled "Foundations of American Law" and included many historical documents along with the Ten Commandments — were still intended to promote a religious code and therefore were unconstitutional.

Second, a display including the Ten Commandments is constitutional only if a reasonable observer would conclude that the government is neither endorsing nor promoting religion with it. In applying this rule, courts look to the same contextual factors used to assess a display's purpose. They consider, among other things, whether a secular theme, such as law or history, unites the Ten Commandments with other items on display, thus communicating a genuinely secular message. And the courts consider whether the display is longstanding and thus has historical significance, and whether the display's physical setting lends itself to reverence of the Commandments as a sacred item. Thus, the Supreme Court upheld a 40-year-old Ten Commandments monument on the Texas state capitol's grounds because, when viewed in context with the thirty-seven other, historical monuments on the grounds, it conveyed a secular message, and its physical setting did not lend itself to religious activity. Based on this context, the Court concluded, a reasonable observer would conclude that the State was not endorsing the Commandments' religious aspects. That the monument prominently acknowledged its private donor further distanced the State from the religious aspect of the Commandments' message, although the Court cautioned that this fact alone would not render the monument constitutional.

In sum, whether a Ten Commandments display is constitutional depends on a complex array of factors, so determining whether a display is constitutional can be difficult.

If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:

1. Describe the display about which you are concerned: size, material, complete contents, appearance, etc.
2. Where, specifically, is the display? Please tell us whether it is indoors or outdoors; where it is located within the building, park, or other venue relative to entry points and other landmarks; its overall setting, etc.
3. Are other items displayed in the Ten Commandments' vicinity? If so, please describe their contents, size, location, etc.
4. If you know, tell us who placed the Ten Commandments on display. Was there any unveiling ceremony or other official action when the Commandments display was posted or erected? Has the display changed over time? If so, how?

The U.S. Constitution allows governments (federal, state, and local) to open up their public facilities — such as public-school buildings and public libraries — for use by religious groups. But governments must give religious and secular groups access to those facilities on equal terms. For example, a public school may permit religious groups to hold meetings in its building after school hours, but it may not allow those groups to use the building for free while charging a fee to secular groups, and vice versa.

Whether governments may refuse to give religious groups access to public facilities is a more complicated question. The legal rule is that governments, in granting access to public facilities such as schools and libraries, may discriminate on the basis of subject matter but not on the basis of viewpoint. This means that governments may reserve the use of their facilities for certain kinds of groups or for the discussion of certain topics, but may not exclude groups simply because they are religious or because they discuss approved topics from a religious perspective. In practice, it can be difficult to determine whether a religious group is lawfully being excluded on the basis of subject matter or unlawfully on the basis of viewpoint. For example, the U.S. Supreme Court has ruled that where a public school allowed its building to be used by any group promoting "the moral and character development of children," the school could not deny access to a club that taught children to memorize Bible verses, read Bible stories to them, and concluded its sessions with a prayer. The Court reasoned that the club sought to teach morals and character to children — thus addressing a permitted subject matter — and that the religious nature of the club's teachings simply reflected the club's viewpoint, just as another group could teach morals and character from a secular perspective. On the other hand, a different court has ruled that where a public library allowed its meeting rooms to be used for events "of educational, cultural or community interest," the library lawfully excluded a group that conducted pure religious worship services, on the ground that religious worship was not a viewpoint but rather its own subject matter, on which no secular viewpoints existed.

Finally, we note that the law is different when the public facility at issue is a traditional public forum such as a public street or park, or other property that the government has made widely available to all comers. In such a case the government may not even be allowed to discriminate on the basis of subject matter, which effectively means that it cannot deny access to any religious (or secular) group.

Because this is a difficult area of the law, we welcome you to contact us if you have any questions about whether your government has lawfully granted or denied a religious group access to a public facility. Also, please contact us if you think you know of an instance where the government may have violated the law in this area. Please provide as much of the following information as possible:

1. What public facility is at issue, and what government (federal, state, or local) owns it?
2. What is the government's policy for allowing outside groups to use the facility?
3. What religious group is being granted or denied access to the facility, and what activities are performed and what topics are discussed at the group's meetings?
4. If a religious group is being granted access to the facility, how are the terms of that access different from the terms that apply to secular groups?
5. If a religious group is being denied access to the facility, what is the reason for that denial, and what other groups (religious and secular) are being granted access to it?

A religious organization, like any other outside group, may be allowed to perform at public-school assemblies, but the religious organization may not use the opportunity to present or distribute religious messages. A public school violates the Constitution if it allows an invited group to offer a prayer, to speak about its religious beliefs, to play religious music, to display religious symbols or art, to promote a sectarian event, or to otherwise advance a religious viewpoint.

If a religious organization was invited to your public school and used that opportunity to proselytize or advance its religious beliefs, please contact Americans United for assistance. Please tell us:

1. When was the assembly? Was it during the school day?
2. Were students required to attend?
3. How old were the students who attended?
4. What religious group was invited?
5. What was the purpose of the assembly?
6. In what ways did the group advance its religious message during the assembly?
7. Is the group scheduled to participate in future assemblies?
8. Did the group or any teacher, administrator, or other school official invite students to attend other programs after school hours or off school grounds? If so, please describe the event(s) to which the students were invited, giving as much detail as possible.

A public school may hold school activities in a religious building, if at all, only if the venue is effectively secularized so as not to associate the school with religion. That generally means that religious iconography (e.g., religious artwork or symbols) and texts must be covered or removed. Furthermore, at least one federal court has concluded that it is always unconstitutional for a public high school to hold its graduation ceremony in a church, even if there is no visible iconography. Any constitutional violations will be compounded if there is a suitable secular location where the event could have been held instead.

If your public school has selected a religious venue for a school-sponsored event, ask the school to find a secular location, or contact Americans United. If your school is planning to host an event, or has hosted a past, recurring event, in a house of worship, please provide any information you have about that event, including:

1. What type of event is it?
2. Where and when will the event be held?
3. Are there alternate secular venues in the area that could accommodate the audience?
4. If it is a recurring event (such as an annual assembly), please provide a detailed description of the venue, as well as pictures or videos from past events if you have them.

Public schools can accommodate students' religious needs by releasing them from the school campus during the day to receive religious instruction (so-called "released-time" programs). But the following conditions must be satisfied:

• The religious instruction must be conducted off the school campus. Not only may the released-time classes not be held inside the school building, but courts have ruled that they may not be held in private buses or trailers standing in front of the school building or in the school's parking lot (even if technically not on school property).
• The released-time instructors — not the school — must bear the burden and expense of recruiting and transporting students who wish to receive religious instruction. Released-time instructors should not be allowed to enter a school's classrooms to recruit students, as that would create the appearance that the school endorses religious instruction.
• School officials, including teachers, may not encourage or coerce students to participate in the released-time program. Nor may school officials promote the released-time program to students or parents. Public schools may, however, perform limited, necessary administrative tasks relating to releasing students to the program.

If, after reading this summary of the law, you think you have encountered an unconstitutional released-time program at a public school, please contact us. Please provide as much of the following information as possible:

1. What church or organization is providing the released-time classes?
2. Where are the released-time classes conducted, and how are participating students transported there?
3. Do school employees encourage or coerce students to participate in the released-time program, or do any of them promote the program to students or parents?
4. Does the school use its own resources (money, labor, equipment) to facilitate the religious instruction in any way?
5. What administrative tasks (such as scheduling, providing attendance slips, making announcements) does the school perform in relation to the released-time program?
6. Does the school award academic credit for the completion of released-time classes?

Public high schools are required by the federal Equal Access Act to permit student-run religious clubs to use school facilities before or after school on the same terms as other noncurricular student clubs. (Curricular clubs — such as the French club, if French is taught as a normal class — may, in contrast, lawfully be afforded greater access than noncurricular clubs.) If, for example, a school allows a student chess club to meet, it must allow the formation of a student-run religious club and it must provide both clubs with the same access to school facilities and equipment and the same privileges and benefits.

There is, however, one exception to this rule. While other student-run clubs may have teachers act as sponsors and participate in club activities, teacher participation in religious clubs is more restricted. During the school day and at other times when the employee is acting on contract time, teachers or other public-school employees may be present at club meetings to supervise and monitor student behavior, and to ensure student safety, but they may not engage in worship, study, singing, or other activities with the club members; nor may they endorse any religious club or encourage students to participate in religious clubs or activities. School employees may only participate in the religious activities of religious clubs if they are attending as a private citizen outside of contract time, and do not hold themselves out as representing the school employer.

Although the federal Equal Access Act applies solely to public high schools, similar equal-access rules apply to elementary schools, middle schools, and even to colleges and universities. In elementary schools, however, the age of the students makes it unlikely that a club would be truly student run, thus raising a greater likelihood that school employees may be impermissibly involved. On occasion, non-school personnel run religious clubs, such as “Good News Clubs,” in the elementary schools. These clubs must be given the same access to school facilities and means of communication that are available to other privately run gatherings (see FAQ entries on “Public Venues” and “Religious Flyers” for more detailed information).

If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:

1. Is the club run by students or sponsored by an outside organization?
2. When and where does the club meet?
3. Does the school have a policy governing student organizations? If so, please include a copy of the policy, if possible.
4. Are any faculty members involved with the club? Who are they and how do they participate in the club?
5. Are non-religious clubs given the same access and privileges that are provided to the religious clubs?