ACLJ Urges Military Leadership Not To Move Nativity Scene From Military Installation

For Christians around the world, Christmas is a time to celebrate the birth of Jesus Christ. It is a festive time filled with Christmas lights, Nativity scenes, candy canes, Santa Claus and reindeer, and the like. Unfortunately, not all feel the joy of Christmas…

In fact, certain organizations seem to think that Nativity scenes on military installations, for example, create a full-blown constitutional crisis.

Just this past week, one such organization proudly boasted of a “victory” because a Nativity scene was moved from the lobby of an unnamed “command’s HQ building” to the installation chapel grounds, following the organization’s demands for this change.

Unfortunately, such groups simply do not understand the First Amendment of the United States Constitution. Because of their flawed and erroneous legal reasoning (that we have addressed many times in the past), we knew we needed to act, and act we did!

We just sent out letters to each of the Judge Advocates General of the Army, Navy, Air Force, Marines, and Coast Guard (including a copy to each Service Chief), explaining why, once again, such a demand was completely wrong and that the Nativity scene need not be moved to the chapel grounds.

In our letter, we explain the following:

[Such organizations] have seriously misconstrued the Constitutional requirements regarding religious exercise and expression in the U.S. Armed Forces. [They] seek[] to convince the Armed Forces that virtually all religious expression (including unattended holiday displays) must be excised from the daily life of Service Members. The standard to apply is the “reasonable observer” standard.

Justice O’Connor aptly noted the following regarding the “reasonable observer” of such displays:

There is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion. A State has not made religion relevant to standing . . . simply because a particular viewer of a display might feel uncomfortable. It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious [activity] appears.

Pinette, 515 U.S. at 779-80 (emphasis added).  See also Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828-29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional. . . .”).

Service Members are deemed to be “reasonable observers.” As such, they are deemed to know that many different faith groups are represented in the military, that different faith groups recognize and celebrate different religious holidays, that it is common to see displays erected to celebrate such holidays, and that the military does not endorse one religious holiday over another merely because it permits such displays on a military installation. 

[The complaining group and its allies] want to remove all semblance of religious expression from the public sphere and limit it to the chapel setting. Such a policy singles out religion and its adherents for special detriment, thereby violating the very Establishment Clause [such organizations] claim to be protecting. The Armed Forces have an obligation to protect the free exercise rights of all Service Members—believers and non-believers alike. Limiting religious expression to avoid offending the non-religious requires military officials to determine which religious expression to allow and which to disallow, in effect, preferring certain types of religious expression over others, in itself something Government officials are precluded from doing by our Constitution. Allowing both religious and non-religious holiday displays on a military installation fully meets the requirements of neutrality and neither favors nor disfavors religion. 

We concluded by emphasizing that the “DOD and each respective Service should utterly reject such specious complaints when they surface, irrespective of which group or organization raises the complaint.” And we also offered our assistance in dealing with such a matter or in drafting or reviewing guidelines for subordinate commanders faced with similar or future such demands.

We will not back down from such attacks! We will continue to stand up for our Service Members and their First Amendment rights.

Stand with us during this Christmas season so that we can continue to address these erroneous and faulty claims.