Christ Child at the capitol

Nearly two-thirds of state capitol buildings in the United States will display a Nativity crèche this Christmas season, a nearly 50 percent increase in just two years under a partnership between American Nativity Scene and the Thomas More Society, a public-interest law firm.

At least 31 state capitol buildings will host Nativity displays, with new entrants Idaho, Oklahoma, Nevada and West Virginia joining the list of crèches that honor the birth of Jesus Christ. Since 2018, the number of participating sites has grown by 10. The creches are privately owned and displayed under Constitutional protections of the practice of religion and free speech.

“So far we’ve been increasing every year,” said Thomas Brejcha, president and chief legal counsel for Thomas More Society, the Chicago-based religious liberty law firm. “We hope it won’t take too long to get up to 50.”

The Thomas More Society said it expects Nativity displays to be placed at state capitols in Arkansas, California, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Washington, West Virginia and Wisconsin.

In 2012, an Illinois group, American Nativity Scene, partnered with the Thomas More Society on a program to encourage private local groups to put up Nativity displays in state capitol buildings across America. The Thomas More Society began its own program to place Nativity scenes in capitols in 2008 at the Illinois Capitol in Springfield. The partnership program has grown every year. A benefactor of American Nativity Scene covers the cost of the figures of St. Joseph, the Blessed Virgin Mary, the Christ child and an angel. Local groups construct the crèches and approach state officials to secure access to the capitol buildings. Thomas More Society provides legal help wherever needed.

“This has been a hard year for many people, making the message of hope delivered by the Baby Jesus more important than ever,” said Ed O’Malley, president of American Nativity Scene, based in Prospect Heights, Ill. “The growth momentum we experienced in 2019 has continued and COVID-19 is not slowing it down, making Christmas 2020 a banner year for Nativity scenes on government property.”

The groups chose to promote Nativity displays at state capitol buildings because they are not only highly visible venues, they are also established or traditional public forums where individuals and groups have constitutionally protected rights to express their religious views. Between 2012 and 2020, the partnership helped place Nativity scenes at more than two dozen state capitol buildings. The key is sponsorship of the displays by private citizen groups, Brejcha said.

“When the town puts up a religious symbol on the water tower, on the school grounds, then they (opponents) have got an argument against us,” Brejcha said in an interview with Catholic World Report. “What we want to do is have private citizens, church groups or an American Nativity Scene committee as we have here. That’s the key to it, private citizen speech. That’s the best way to do it. What government grants, government can take away, and in this case we don’t want government speech, we want private speech, free speech.”

The battle to protect the rights to religious expression in public forums was fought by the Thomas More Society in 1987 over a life-size Christmas crèche display on the Richard J. Daley Center Plaza in Chicago. William J. Grutzmacher secured permission to erect a Nativity scene at Daley Plaza in December 1987, but workers from the building commission that runs the Daley Center began tearing it down on Dec. 22. A federal judge issued a temporary restraining order allowing the display to remain up until after Christmas. A federal lawsuit, Grutzmacher vs. Public Building Commission of Chicago et. al., was decided in November 1988.

United States District Court Judge James Parsons ruled that to deny a Nativity crèche or a menorah on Daley Plaza would violate the plaintiffs’ rights to free speech under the First Amendment to the U.S. Constitution. Lubavitch Chabad House Inc. had joined the legal case, as it sought to erect a menorah on the plaza for Hannukah. Religious expression, Judge Parsons wrote, enjoys the same protection as political speech. Parsons issued a permanent injunction barring discrimination against religious speech under the First Amendment and the Fourteenth Amendment to the U.S. Constitution.

Brejcha said there is a public misperception that so-called separation of church and state prevents religious displays on public property. “This talk about a wall of separation between church and state is taken by many people as a call, a summons, to suppress any religious expression as if it’s somehow bad, that it’s counter to democratic values,” Brejcha said. “Nothing could be further from the truth. The Constitution guarantees the free exercise of religion, and frankly this country was founded by people seeking religious liberty. The fact is, our legal structure is geared to protect the freedom of religion. We’ve pushed hard on the legal front to make this point and we’ve prevailed when push comes to shove.”

In 2016, the Thomas More Society helped clear the way for placement of a Nativity scene at the State House in Boston, Mass. A state lawmaker was denied permission to erect a Nativity on the State House lawn because it was deemed religious expression. The society sent a letter to the commonwealth outlining the legal issues and asserting it could not deny such a display in a public forum. The commonwealth relented, and a Nativity display was put up in the Great Hall inside the State House that December.

The same legal principles apply at the local government level. In 2015, the Thomas More Society defended Franklin County, Indiana, against lawsuits brought by the Freedom from Religion Foundation, the Satanic Temple and the American Civil Liberties Union (ACLU) attempting to thwart the 50-year tradition of a Nativity scene on the courthouse lawn in Brookville, Ind. A stipulation agreement in the suits determined the displays must be sponsored by citizens of the county. The federal lawsuits were then dismissed.

“You have to do it the right way,” Brejcha said, “and that’s the key to it, to understand that once you establish what they call a traditional public forum or a designated public forum for citizens to engage in free speech — and it may be political speech — once that baseline is established, you can’t discriminate against the content of the speech. Religious speech is as protected by the First Amendment as political speech. That’s the key to it.”

The Nativity scenes bear extra importance in 2020, Brejcha said, nothing attempts by state and local governments across the U.S. to restrict freedom of religion in the name of preventing the spread of the Wuhan coronavirus that causes COVID-19. The Thomas More Society was involved in cases in California, Michigan, Illinois, New York, New Jersey, Wisconsin and other states that placed more restrictive COVID-19 restrictions on churches, synagogues and religious schools than on secular businesses such as liquor stores and home-improvement centers. A number of those cases continue.

“The presumption that government knows better than they do what’s the right way to worship in this time of crisis I think is presumptuous and I think it’s wrong,” Brejcha said. “I think it will be recognized as such, sooner than later.” The COVID restrictions are the latest examples of what Brejcha described as “an increasing sense of hostility toward religious faith in many of the so-called blue or urban areas on the part of people who are in charge. That’s regrettable.”

“That’s why public-interest law firms are needed,” Brejcha said. “Frankly, it’s a growth industry. We find more and more Christians and other people of faith who are not content to stay docile and quiet any more. It’s time we assert ourselves and take advantage of the rights that we have. If they aren’t used, they are going to be lost. Use it or lose it as they say. We do have to fight.”

Brejcha said those ongoing legal battles make the expanding presence of Nativity scenes on public grounds all the more significant. “It is true that puts a spotlight on these Nativity scenes that’s maybe brighter than it’s ever been before,” he said. “We’ll be keeping up the effort, that’s for sure.”