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Halloween Law: What is the Establishment Clause?

Halloween Law
Is There Halloween Law on Public Displays?

Halloween Law.  Really?

The kids come home from school explaining that Halloween decorations went up at the school.  School staff decorated with witches, pumpkins and black cats.  One teacher even dressed up as a witch, preparing for a Halloween part in a few weeks.

At the same time one family claims offense.  They ask the school to stop, threatening a lawsuit.

Now what?

These facts come from an actual case.

One family took issue with the depiction of witches, cauldrons and brooms in decorations dressing up various places around a public elementary school.  They objected to teachers dressing up as witches in black dresses and pointed hats during the Halloween season.

Included in the record of the case is the school cafeteria calendar depicting a witch holding a wand, with the caption “What’s cooking?”

Affidavits filed in court, supported by an actual anthropology professor, claimed “Wicca” is a variety of witchcraft and a religion. With an increasing number of Wicca followers, those who objected said teachers wearing witch clothing would be significant to adherents of Wicca.

Halloween Law: The Establishment Clause

The court announced that the issue boils down to whether the central effect of the Halloween celebration, including depictions of witches and the rest adds up to the endorsement or promotion of the Wicca religion.

The First Amendment prohibits the government from establishing any religion as that of the government.   The Amendment also prohibits government impingement on the free exercise of religion.  Constitutional lawyers call those the establishment clause and the free exercise clause.  In the Halloween case, those opposed to the celebrations made the case that the school’s celebrations touched on the establishment clause.

The U.S. Supreme Court created a test for whether a law or practice violates the establishment clause, with three parts. Does the practice have a secular, that is, non-religious purpose?  Is its principle or primary effect to advance or inhibit religion?  The third part of the query asks whether the practice creates an excessive entanglement of government with religion. The court in the Halloween case noted two other key questions.  One is whether the challenged practice has the purpose of challenging religion. Finally, the setting or context is crucial in finding an establishment clause violation.

Do Halloween Celebrations in School Violate the Constitution?

In defense of the Halloween festivities school officials admitted fully that some of the teachers dressed as witches.  At the same time, others dressed as a clowns, fairy-tale characters and one even dressed up as the president of the United States.

Plunging into its analysis the court recognized that particular care must be taken in cases involving impressionable school children.  On the one hand school boards enjoy wide latitude in setting school curriculum.  On the other hand such latitude goes away if school practices directly and sharply violate basic constitutional values.

The court sifted through the evidence then announced that its key consideration would not be whether the witch, the cauldron and the rest are capable of communicating a religious message to some people.  Instead, citing a string of U.S. Supreme Court precedent, the key to the final analysis in the case would be the context in which the symbols were displayed.

Halloween Law: Bottom Line

The court found no doubt that the festivities served a secular, non-religious, purpose, basically providing a fun time for the students and heightening their cultural awareness.  The court also looked but saw no evidence that anyone in the school acted in furtherance of any religion.  Nor did the manner of the celebrations invoke entanglement between government and religion.

As to the key in the case or the context of any offending symbols the court pointed out the witches were displayed together with pumpkins and other traditional Halloween symbols such as clowns and other dress-up costumes.

“People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation”

Harris v. McRae, U.S. Supreme Court (1980).

Putting it all together the court held that the use of popular symbols of Halloween in the public elementary school’s Halloween festivities does not violate the establishment clause.  By participation in these Halloween festivities, the school board did not send an unmistakable message that it supports and promotes Wiccan beliefs.

Halloween – The Rule of Law

The facts and the holding here come from a Florida case: Guyer v. School Board of Alachua County.  But there’s no reason to believe the bottom line does not apply universally in all 50 states.  The Florida Court of Appeals applied U.S. Supreme Court law in its analysis of the facts presented in the case.  Further, the U.S. Supreme Court itself refused to take up the Guyer holding.  In legal terms the top court denied a Petition for Writ of Certiorari.  That generally means the case holding represents nothing that offends basic constitutional principles, at least not to the extent that it merits the limited time and resources of the highest court in the land.

Constitutional Law Sources on Holiday Celebrations:

Guyer v. School Board of Alachua County, First District of the Florida Court of Appeals 1994 case, this is the “case in chief” summarized above.

Harris v. McRae, U.S. Supreme Court, 1980 case indicating offense alone is not enough to show a violation.

Lynch v. Donnelly, This U.S. Supreme Court 1984 case is one of several key cases on establishment clause analysis.

The Author of this article, attorney Andrew D. Myers, is a personal injury attorney in Massachusetts and New Hampshire who occasionally blogs on a variety of legal issues.  If you or someone you know has been injured in an accident as a pedestrian, bicyclist, or while driving or a passenger an automobile, motorcycle or truck, the office is here to help.  Unlike hiring a TV Lawyer who you may or may not actually ever meet, with our office you will meet and discuss your case with an experienced personal injury lawyer.  The personal injury law firm of Law Offices of Andrew D. Myers has many years of experience in personal injury law.  Contact us for a FREE consultation through this website or call our 24 hour answer line. We are here to help you.


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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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