December 20, RE: Unconstitutional ban on employee Christmas decorations deemed religious

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1 Post Office Box Orlando, FL Telephone: Facsimile: C St. N.W., Ste. 360 Washington, DC Telephone: Facsimile: Reply to: Orlando Post Office Box Lynchburg, VA Telephone: Facsimile: liberty@lc.org VIA and FACSIMILE: Jill Singer, Early Intervention Branch Head North Carolina Infant-Toddler Program NC Department of Health and Human Services 1916 Mail Service Center, Raleigh, NC Jill.Singer@dhhs.nc.gov Fax: RE: Unconstitutional ban on employee Christmas decorations deemed religious Dear Ms. Singer: I write on behalf of employees of the Durham Children s Developmental Services Agency, who have been prohibited by its director, Dr. Marcia Mandel, from visibly displaying any Christmas or other holiday decorations deemed religious or reflective of a specific holiday or religion, while secular decorations have been permitted. Such a directive constitutes viewpoint discrimination in violation of the Free Speech Clause of the First Amendment of the United States, and is by no means required by the Establishment Clause of the First Amendment. Please reverse Dr. Mandel s directive, to prevent liability for civil rights violations. By way of brief introduction, Liberty Counsel is a civil liberties, legal defense and educational organization with offices in Florida, Virginia, and Washington, D.C., as well as hundreds of affiliated attorneys throughout the country, including North Carolina. Much of our work in the public interest deals with First Amendment rights and the religious rights of individuals. We have had great success in defending and vindicating those rights. I understand the following facts to be true: Like many public employers, North Carolina Division of Public Health permits its employees to decorate office spaces and common areas for various holidays. Using their own resources, in the past, the staff of local Children s Developmental Services Agencies ( CDSAs ) have brought Christmas decorations, and decorated office common areas, along with their own office areas, on the employees own time. Decorations have included office and personal Christmas trees,

2 Page 2 Christmas wreaths on office doors, colored lights, snowflakes, glass balls, small Nativity Scenes, and wrapped presents. Similar other displays and decorations have been placed in other CDSA offices. However, this practice has been banned in at least one local CDSA. Dr. Marcia Mandel, Director of Durham CDSA, on November , sent the following (emphasis added): Since it is almost December, I wanted to send out some guidelines designed to ensure that we are culturally sensitive to all who work and visit our offices. This is a complicated issue, and I encourage you to talk with your supervisor if you have questions, but I wanted to get out some basic information as quickly as possible. Our Management Team has discussed this issue in detail and has agreed on the following: No decorations reflective of a specific holiday or religion should be displayed in common use areas, on the outside of office doors, in waiting areas, or in areas where families meet with staff. The receptionists may have small items in their personal space. Holiday parties are fine but decorations and activities should not be reflective of a specific holiday or religion. Thus, the makes a disingenuous claim of being culturally sensitive to all (except the majority of employees who celebrate Christmas or Hanukkah, apparently), and bans the public display of Christmas, Hanukkah, and other holiday decorations that might be reflective of a specific holiday or religion, whatever those symbols or decorations might turn out to be, in Ms. Mandel s estimation, in most areas of the CDSA s building. Moreover, it bans the use of the word Christmas for an office party, and bans party activities such as the voluntary singing of Christmas songs or carols deemed religious, and the like. More troubling, the November 30 implies that it has official sanction of the North Carolina Division of Public Health and the North Carolina Infant-Toddler Program ( Our Management Team has agreed ). In directing the removal of and instituting a ban upon the display of all holiday decorations, symbols or party activities that could be deemed religious, regardless of context and regardless of their public- or privatelysponsored origin, this directive is unconstitutional. The removal of specific holiday decorations deemed religious evidences hostility toward religion and the preference for things secular or non-religious. Christmas is an official, federally- and state-recognized holiday. As you might imagine, employees who have traditionally provided decorations now deemed religious (or specifically Christian or Jewish) feel less worthy and like outsiders within their own departments. The was clearly driven by the perceived religious content of the displays. There is no constitutional principle which requires anything specifically religious to be removed from public buildings.

3 Page 3 The November 30 has transgressed the proper role of government in accommodating and recognizing holidays with a specific religious origin, such as Christmas. The most obvious accommodation is, of course, the recognition of Christmas as a legal holiday at every level of government. Beyond that, governments may not sponsor solely religious displays or participate in solely religious celebrations of Christmas. However, courts have uniformly supported the government s ability to recognize and commemorate secular aspects of Christmas, as well as religious aspects of Christmas when combined with secular aspects of Christmas so as to serve an overall secular purpose. Commemorating and recognizing Christmas as a national holiday of significance to a great number of its citizens is a legitimate secular governmental purpose, and does not violate the Establishment Clause, as it does not sponsor or endorse any religion. All aspects of North Carolina state government, including CDSAs, can constitutionally sponsor holiday displays that include religious elements. Such is the actual practice of numerous other departments within North Carolina. See December 8, 2016 State Capitol Christmas Tree lighting ceremony, as well as the tree lighting ceremony in the Governor s Mansion. 1 CDSA staff and others may wish others Merry Christmas, following the example of Governor McRory ( Merry Christmas from the North Carolina Executive Mansion! ). 2 The United States Supreme Court has repeatedly stated that The Establishment Clause proscribes [governments] from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. Lee v. Weisman, 505 U.S. 577, (1992); County of Allegheny v. ACLU, 492 U.S. 573, 593 (1989). The Constitution requires accommodation, not merely tolerance, of all religions and forbids hostility toward any religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984). In Lynch, the United States Supreme Court found that a publicly-sponsored religious symbol (a Nativity Scene or crèche) erected and maintained by city officials as part of a Christmas holiday display, together with secular symbols, is fully constitutional and in no way violates the Establishment Clause. The crèche was part of a larger Christmas holiday display in which there was a variety of secular symbols, including a Santa Claus, reindeer pulling Santa s sleigh, candy-striped poles, a Christmas tree, carolers, lights and a banner reading Season s Greetings. The Court held that, viewed in the proper context of the Christmas holiday season, inclusion of a crèche in the display merely depicts the significant historical religious event long-celebrated in the Western world and the historic origins of an event long-recognized as a national holiday. Any benefit to religion is indirect, remote and incidental, no more an advancement or endorsement of religion than the Congressional and Executive recognition 1 See numerous websites: December 10, 2016 tweet Merry Christmas from the North Carolina Executive Mansion! available at

4 Page 4 of the origins of the holiday itself or its annual commemoration as a legal holiday by governments at every level. It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of the celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so taint the City s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol - the crèche - at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayer by paid chaplains, would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. 465 U.S. at 686. When the government sponsors a stand-alone display that solely focuses on the religious aspects of a holiday, however, it violates the Establishment Clause. Allegheny County v. Pittsburg ACLU, 492 U.S. 573 (1989) (stand-alone crèche/nativity impermissible; stand-alone Christmas tree permissible). In short, a government s celebration of public holidays which have cultural significance, even if they also have religious aspects, is a legitimate secular purpose. Even if the CDSA employee displays were considered government-sponsored, in full context, the inclusion of arguably religious elements with the secular elements does not transform the displays into statements of government endorsement of religion any more than including a crèche among secular elements of a Christmas display in Lynch v. Donnelly. The Establishment Clause also prohibits government from being hostile to religion. Selecting one legal holiday for negative treatment and special restrictions solely because it has some religious aspect clearly demonstrates hostility to religion, generally, and Christianity, particularly, thereby violating the Establishment Clause. The Establishment Clause of the Constitution does not require a CDSA to suppress all private religious speech. The only requirement of the Establishment Clause is that government be neutral, neither endorsing nor showing hostility to religion. Far from being neutral or accommodating, the November 30, evinces an aggressive attempt to excise any religious or specific holiday content from displays on CDSA property, despite the contrary wishes of employees who have been previously permitted to express themselves within the limited public forum. Permitting various displays in public facilities cannot be said to constitute a government endorsement of all the viewpoints expressed by the displays. Denying employees with religious or specific holiday decorations access to the spaces available for employee-sponsored holiday decorations actually violates the Establishment Clause rather than upholding it. The

5 Page 5 Establishment Clause simply may not be used as an excuse for excising religion from public spaces. Further, if a CDSA opens up a forum for display of holiday decorations in offices, which it has, it need only keep the forum open for those employees providing decorations relating to the public holiday being commemorated. The Durham CDSA has opened up a limited public forum for employee expression within these display areas. Limiting a forum to only non-religious use discriminates amongst potential users because of their religious viewpoints and thus violates the First Amendment s prohibition against viewpoint discrimination by governmental bodies. Lamb s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993). When government opens up a limited forum, it must treat all persons and groups seeking to use the forum equally, regardless of their viewpoint. See Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, (1996); Good News Club v. Milford Central School Dist., 533 U.S. 98 (2001). The November 30, sent the unmistakable message that employees who would display decorations of religious symbols do not have worthwhile displays, while those with nonreligious viewpoints are deemed worthy. These actions to censor religious content by private parties (even on public property) violate the First Amendment. Liberty Counsel stands ready to defend the legal rights of North Carolina CDSA employees. These actions and the of November 30, 2016 have unnecessarily exposed the Division of Public Health and the Durham CDSA to liability for civil rights violations. Based on the authorities cited this letter, I hereby request that you remedy this situation within the Durham CDSA (and any others) by permitting a balanced approach to all official holidays, and by stopping the treatment of religious symbols of Christmas with special disdain. Please respond to this letter within thirty (30) days with assurances that 1) the November 30, 2016 directive has been rescinded, and 2) that employee holiday displays in CDSAs and elsewhere will no longer be subject to a censorship procedure which eliminates the display of decorations with some religious or specific holiday significance. If I do not receive such a response, I will conclude that the above outlined positions accurately represent the position of the Durham CDSA and the Division of Public Health, and will take further steps to prevent irreparable harm to the rights of our clients. I look forward to your prompt response. Sincerely, Richard L. Mast, Jr. Licensed in Virginia

6 Page 6 CC: VIA Marcia Mandel, Ph.D. marcia.mandel@dhhs.nc.gov Director, Durham Children s Development Services Agency (Chatham, Durham, Franklin, Granville, Orange, Person, Vance, Warren Counties) VIA FAX: Daniel Stanley, Division Director, Division of Public Health VIA FAX: Pat McCrory, Governor