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Legalities of Religious Expression during the Christmas Season

Tom Brejcha, President and Chief Counsel of the Thomas More Society, discusses the conflicting and confusing information about the legalities of religious expression during the holiday season.

Tom Brejcha discusses religious free speech and Christmas nativity

Family Policy Matters
Transcript: Legalities of Religious Expression during the Christmas Season

INTRODUCTION: Thanks for joining us this week for Family Policy Matters. As we enter the Advent season in preparation for Christmas, we often are confronted with conflicting and confusing information about the legalities of religious expression during the holidays, even to the point, it would seem, that some question whether or not it is even permissible to wish others a “Merry Christmas” in certain public places. Our guest has been on the front lines of this religious liberty debate for the last several years, and we are excited to talk with him today about that.

Thomas Brejcha is President and Chief Counsel of the Thomas More Society. A former Army captain, Tom has spent the last 20 years leading this national, non-profit, public interest law firm, which is dedicated to restoring respect for life, religious liberty, and family values. In recent years, the Thomas More Society has teamed up with the American Nativity Scene Committee to provide large nativity scenes, at no cost, for public display on public property in a growing number of states. They also provide pro-bono legal work to defend the legality of these displays when necessary. Tom Brejcha, welcome to Family Policy Matters. It’s great to have you on the show!

TOM BREJCHA: Thank you, John. I’m thrilled to be with you.

JOHN RUSTIN: Tom, as we begin our discussion, tell our listeners, if you would, about the American Nativity Scene project and what it is all about.

TOM BREJCHA: John, we’re blessed to have a very, very generous benefactor who has agreed—and my gosh, I think it’s going on eight or nine years, if not ten years—to provide free nativity scenes for folks who are willing to take the lead and the responsibility to request a permit to put them up in public spaces, which qualify under the law—and this is the key to it—as traditional or designated public forums. Free speech zones is the shorthand way to describe it. And the key idea here is that putting up the nativity scene is another form of free speech. Government cannot dictate what can and cannot be said in a free speech zone, what we call a public forum. And if it’s privately sponsored, privately funded, it’s the same equivalent as if someone set up their soapbox and preached their politics or their moral advocacy. You know, putting up a nativity scene is another form of speech. This is the key. So it’s not government doing it. We don’t want government to sponsor it. We don’t want government to take care of the nativity figures in the off-season. It’s our private clients who put up the nativity, take care of it, secure it, and take it down. We do ask that people get a carpenter—and my gosh, there are all kinds of church-affiliated folks that are carpenters who are delighted and honored to build a stable in which these figures can be displayed. The ACLU actually has said this is—they agree with it—it’s free speech. We’ve had it in the State House, the State Capitol in Springfield Illinois for the last, what, nine or ten years. We have one down in Texas; the ACLU said that was permissible. We’ve had a couple of fights around the country, but we’re trying to put them in as many state capitols and other public venues as possible. And it’s a great way to celebrate what is essentially—and I’m sure your listeners agree with me—a religious celebration.

JOHN RUSTIN: No doubt. Tom, talk about the legal side of this. I know you’ve touched on it, but are there some specific legal parameters, or “do’s” and “don’ts” if you will, for the display of nativity scenes in public places or a public forum? 

TOM BREJCHA: Yes, John. The key is to establish a baseline that, in fact—as is the case in most state capitol buildings around the steps—that there have been rallies, political rallies. In other words, if the labor union wants to go in there and the teachers’ union wants to demonstrate against what they deem unfair, and this is permitted, well, that gives us a foothold, because that shows that there is permissible free speech going on in that venue, and that makes it, what we call, a “designated public forum.” And once you establish that baseline, then it’s discrimination, it’s wrong, it’s what we call a “viewpoint bias,” to say, you can have a labor union advocating for public policy, but you can’t have Christians advocating for people to pay their respects to the birth of Christ as celebrated 2,000 years ago and now in our own day. Free speech can’t be governed as to the content of what is spoken. You can put reasonable restraints on the time or the place or the manner of the free speech. You know, you can’t have the Christians and the Satanists in the same place at the same time, no. But we want to have our nativity scene there and we want to have a church choir come in. It could be just a few hours on one of the beautiful days before the Christmas Day itself, or it could be for a week or two weeks, you know, and it works. This legal theory, as I say, has been approved by ACLU representatives. They agree with us.

JOHN RUSTIN: Tom, what range of responses have you received in the states where you have placed nativity scenes, particularly when it comes to governmental entities and elected officials?

TOM BREJCHA: John, we get a lot of strange responses because there is this misconception that somehow religion ought to be expunged from the public sphere, that it ought to be kept within the four walls of churches. And this is a fiction, a falsehood, against which we convey by deeds as well as words. I mean, the whole point of the Christian message is one that ought to be proclaimed loud and clear. I think it’s high time that people—Christians—need to realized that we can’t be silent, we can’t look the other way, we can’t go off to keep our message boxed up within the four walls of our churches and worship spaces. It’s time we went out into the public square and proclaimed the message of the Christ child. Certainly, society needs it and I think we should get active and proclaim it.

JOHN RUSTIN: Tom, there always seems to be confusion about what is legal in public schools this time of year, as well. In fact, some people think that schools essentially have to be “sanitized” of anything relating to faith or religion. Give us a brief primer, if you will, on what is and is not allowed in public schools when it comes to celebrations of Christmas and the like.

TOM BREJCHA: John, you hit a sore spot there. We also represent—we’re honored to represent the Students for Life of America. And we’ve got all kinds of cases around the country where there’s an LGBT student club and the Christians come along, or the pro-life kids, and they want to start a pro-life club and, “Oh, my heavens!” The school administrators say, “Oh no no! That’s religion! You cannot do that!” Well, guess what? The U.S. Supreme Court has said, going back decades, that First Amendment rights do not stop at the schoolhouse door. So here too, you cannot discriminate as to the content of free speech on the part of students. And we’ve had very good luck in getting administrators to back down just from our writing letters. But a couple of cases, one in Las Vegas, one recently in Allentown, Pennsylvania, where the folks would not agree and so we had to go to court. And I want to tell you that once we file that lawsuit and file our legal papers, in both those cases, the administrators also backed off. And I think that’s the key to it. If the kids want to put up a Christmas display, as the Students For Life put up a pro-life display, they should have that right. It’s not an establishment of religion by the school district. It’s private speech by students, free speech. And this is something that is private—not public— privately funded. The parents can back up their kids and provide whatever finances are necessary to show. And what a message the Christ child sends. It’s not just a religious message! It has secular significance. It’s showing a family, it’s showing a father that stood by his wife, Mary, in what really might have been called a “crisis pregnancy” back then. And here are the secular authorities, come bearing their gifts. Recognizing the humility of the setting is another message. I mean, it is something that really I think our society needs and we shouldn’t hold back from having our kids put up these displays. And we should put them up ourselves and be proud of it.

JOHN RUSTIN: I think what you touched on is so important for parents and students across our state and across the nation to recognize, is that quite often, administrators may act wrongly out of complete misunderstanding of the law. But when that law is brought to them, when it’s explained to them, and they’re presented with the truth of what students can do legally, they often back down and back down quite quickly. So it’s important that parents not let the school administrators, teachers, principals etc. kind of railroad their children, but that they take a stand and go through, as we suggest, the proper channels, the chain of command. Go to the teacher, the school administrator, the principal etc. and if ultimately necessary pursue legal action to stand up for those religious liberty rights. But quite often, as you have said, the schools will back down quite quickly when they understand that they are just wrong in their actions.

TOM BREJCHA: That’s right John. But it shouldn’t be necessary to be on the firing line. This is something that is very American. It’s called “Free Speech.” Part of our constitutional foundation on which this country was started. And the key, it’s not government speech. If it’s government speech, nope, it can’t be religious. But if it’s private speech, more power to you! It’s free speech, free exercise of religion, two parts of the First Amendment, and it’s certainly not only legal, it’s our God-given right.

JOHN RUSTIN: Tom, what kind of growth and interest have you witnessed with respect to the American Nativity Scene project? And is this project ,from your perspective, getting easier every year, or is it becoming more challenging? 

TOM BREJCHA: The more precedence we line up, John, the better off we are. We’re in Texas. We’re in California. If they allow it in Sacramento, it must surely be permissible elsewhere. We’re in Illinois, about 13, 14 or 15 states, Georgia—in Atlanta. So frankly, the only limit so far has been our time and we can’t be everywhere. But the more we can promote this, other people can take up the cause as well. It’s not something that we own but we’d be happy to do whatever we can, as time and resources permit, to help folks. I think ultimately, we’ll aim for all 50 state capitols and I hope every public venue in the United States. We’re pulling up in Ferguson, Missouri, after all the trouble they had there. And it goes from church to church in Ferguson. And so, the Christian message is at least proclaimed there and it’s a healing message for this wonderful season of ours and we hope it will be everywhere.

JOHN RUSTIN: That’s great and Tom that leads into my last question before we conclude our conversation: what can our listeners do and where can they go to learn more about the American Nativity Scene Project and all the good work of the Thomas More Society? 

TOM BREJCHA: They can contact us—we’re the lawyers— or American Nativity Scene. Tis running out, I guess, but I think they can still manufacture and ship a nativity, certainly down to North Carolina. How many shopping days ‘til Christmas? We can shop for the nativity scene and enough time for somebody to put together a stable and let’s hope we can do as much of this as we can because it’s a message that is the greatest story every told, and that was the beginning, the nativity. And what better message to put out this time of year?

JOHN RUSTIN: And with that, Thomas Brejcha, I want to thank you so much for being with us on Family Policy Matters and for your great work defending religious freedom across America.

TOM BREJCHA: Thanks very much. It was joy to be with you and proclaim this message again on your station.

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