Jesus Is the Reason for the Season:

Excerpts from Calvary Chapel Church v. Broward County, Florida (2003)

[EDITOR'S NOTE:  United States District Court, S.D. Florida, upholds a "Jesus is the Reason for the Season" display at county holiday display event (Holiday Fantasy of Lights) as constitutionally-protected private religious speech.  Excerpts from the court opinion by Chief Judge Zloch, 299 F.Supp.2d 1295, 1297-1305 (S.D. Fla. 2003) are given below.   Some citations and footnotes have been omitted.

    Following the court opinion is a Commentary by Belcher Foundation about government acknowledgments of Christmas in general.]

299 F.Supp.2d 1295 (S.D. Fla. 2003)


United States District Court, S.D. Florida.





No. 03-61927-CIV


Dec. 23, 2003.

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   ZLOCH, Chief Judge.

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I.    Background

   A.     The Holiday Fantasy of Lights

   The Holiday Fantasy of Lights (hereinafter the "HFL") is an annual event presented by Defendant, Broward County, Florida, Board of County Commissioners (hereinafter the "County") in conjunction with the winter holiday season.   [***]

    Substantively, the HFL consists of lighted displays measuring up to twenty-four (24) feet wide and fifteen (15) feet high.  [***]  Additionally, the County broadcasts music over a low wattage radio station which visitors may play over their car radios.  One of the songs played over the radio regards playing with a dreidel.  [***]  Each year, a list of the lighted displays which will comprise the event is selected by a Committee of the Broward County Parks and Recreation Division (hereinafter the "Committee") [....]  The County's intent in selecting displays is to provide entertainment through fanciful, lighthearted or whimsical but non-serious depictions related to the entire winter holiday season.  [***]

    The County has two primary means of generating revenue through the HFL.  The first is through ticket purchases of people wishing to see the show, and the second is through the sponsorship of the light displays.  [***]  Individuals and companies who sponsor displays are recognized at the HFL by a sign which identifies the sponsor in name and logo and is displayed next to the sponsor's chosen display.  [***]  Sponsors are also entitled to have their name and logo included in printed materials promoting the event.   [***]  In 2003, approximately sixty-three (63) displays will comprise the HFL, and seven (7) of those displays are presently sponsored.  [***]

    The County maintains a stated policy of not designing or accepting religious displays for exhibition in the HFL.  [***] 

[* * * * *]

    The Committee also designed or approved a number of displays not depicting a corporate logo, but reflecting imagery associated with the winter holidays season, including the Christmas holiday.   The Court notes that the 2003 Sponsorship Book [***] makes available for sponsorship a forty (40) foot "Rainbow Tree" display, which appears in its shape and decoration to be a Christmas tree; a "Victorian Candy Shop," which depicts a house adorned with candy canes, holly, and bows; a display depicting "Victorian Carolers Singing"; a "Country Christmas Toboggan Scene"; a "Santa, Sleigh, and Reindeer Scene"; a scene depicting a "Country Tree Trimming"; a "Holiday Shopping Bag with Packages Scene" depicting toys and a candy cane emerging from a bag; a scene depicting "Santa Golfing"; and a display containing the words, "And to all a goodnight."

    B.    Calvary Chapel Church, Inc. and the Holiday Fantasy of Light

   In 2002, Plaintiff, Calvary Chapel Church, Inc. (hereinafter "Calvary Chapel" or the "church") applied to sponsor the HFL and submitted a proposed display to the County composed of a Christmas star and the words, "Remember Him--Presented by Calvary Chapel Ft. Lauderdale."  Citing the display's overtly religious message, the County declined to include it in the show.  [***]  Calvary Chapel and the County eventually came to an agreement that a display would be included in the show, sponsored by Calvary Chapel, with the Christmas star and the words, "God Bless America."  [***]

    On April 8, 2003, Calvary Chapel again submitted a proposed display to the County for inclusion in the HFL.   The proposed display depicted a cross and the words, "Jesus is the Reason for the Season."  Again objecting to the religious nature of its design, the County declined Calvary Chapel's proposed display.  [***]  The parties discussed alternative designs, including ones not previously approved by the Committee but ultimately were not able to reach agreement.  [***]

    The above-styled cause was initiated on October 22, 2003.  Calvary Chapel's Memorandum Of Law In Support Of Plaintiff's Motion For Preliminary Injunction [***] requests that the Court issue an injunction requiring the County to permit Calvary Chapel to sponsor a display in the 2003 HFL consisting of a cross and the words, "Jesus is the Reason for the Season---Calvary Chapel Fort Lauderdale."

II.    Preliminary Injunction Standard

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    A.    Substantial Likelihood of Success

[* * * * *]

    1.    Type of Speech

    It is well established that private religious speech is protected by the First Amendment.  See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 [***] (1995) (citations omitted) ("Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.").  Like the display involved in Capitol Square, Calvary Chapel's proposed display--a cross with the words "Jesus is the reason for the Season"--is private religious expression within the First Amendment's protection.  See id. at 758 [***] (discussing the display of a cross on public property).

    2.    The Nature of The Forum

[* * * * *]

    The HFL is a non-public forum.  Though it is held in a public park, the HFL occurs after dark in a designated section of the Park which is closed except for the HFL.  [***]   Moreover, the parties agree that the HFL is not a forum for general discussion, but rather is limited to recognition of the winter holiday season, including Christmas.   [***]  Based on this combination of facts--use of an otherwise closed area, a focus on limited content, and the intention of generating revenue--the HFL is a non-public forum.  [***]

    3.    Non-public forum review

   As stated above, the justification for the regulation of speech in a non-public forum must be reasonable in so far as the regulation makes distinctions based on subject matter or speaker identity; however, such regulation must be viewpoint neutral.  [***]

[* * * * *]

    The parties dispute, however, whether the County's policy as applied to Calvary Chapel's proposed display is a regulation based on content or viewpoint.  Specifically, Calvary Chapel maintains that its proposed display represents a religious viewpoint of the winter holiday season and specifically Christmas.  Calvary Chapel points to the County's allowance of secular and commercial Christmas displays such as Santa Claus with a sleigh pulled by reindeer, Christmas trees and a variety of displays of presents to show that the Christmas holiday is a subject of the HFL.  Additionally, Calvary Chapel maintains that the display of a dreidel and the broadcasting of a song about playing with a dreidel is a religious viewpoint of the Jewish holiday of Hanukkah.  Indeed, the testimony shows that the County voluntarily displays the dreidel and broadcasts the related song.

    Conversely, the County maintains that it excludes all overtly religious, overtly political and overtly commercial subject matter because those topics have the potential to cause controversy or distract from the "fun", "lighthearted" and "fanciful" themes of the HFL.  The County maintains that these subject matter exclusions are rationally related to its goals of generating revenue and providing entertainment.   Additionally, the County claims that all of the displays including those specified by Calvary Chapel depicting Santa Claus, Christmas trees and a dreidel are secular and are "fun," "lighthearted" or "fanciful" and thus are within the subject matter of the HFL. (3)

[n. 3:]    The Court notes that the parties also disagree regarding whether displays of a paratrooper, a tank and a humvee are patriotic, fanciful or warlike.  This issue is irrelevant to the outcome of this Motion.

    The United States Supreme Court has addressed the same question on similar facts in Good News Club v. Milford Cent. School, 533 U.S. 98 [***] (2001) and Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 [***] (1993).  In both cases the Court addressed application of a New York State law authorizing local governments to restrict the use of public school property during non-school hours which the Court, in both cases, held to be non-public fora and thus governed by the reasonable and viewpoint neutral standard.  See Good News Club, 533 U.S. at 106-07 [***] (citations omitted); Lamb's Chapel, 508 U.S. at 392-93 [***] (citations omitted).

    In Lamb's Chapel, the Court addressed a local school district's rejection of an evangelical church's application to use school facilities to show a six-part film series addressing family values from a Christian perspective.  508 U.S. at 388-89 [***].  Rejecting the application twice, the school district stated that the film was "church related."  In making this determination the school district relied on a rule adopted pursuant to New York law which prohibited use of school facilities "by any group for religious purposes."  Id.  The Court held, however, that the application of this rule's equal prohibition against all religious purposes is insufficient to justify rejection of the church's application because the film concerned a subject matter--i.e. family values--otherwise appropriate under the rules regarding use of the school facilities.  See id. at 394 [***].  The Court held, therefore, that the school district violated the church's First Amendment right to expression in that the school district discriminated against the church's religious viewpoint on an otherwise permitted subject matter.  See id. at 393-94 [***].

    More recently, the Court applied the Lamb's Chapel holding to the facts of Good News Club.  In that case, a private Christian organization for children applied to the local school board for permission to use school facilities for its meetings.  The local school board rejected the application under a rule, adopted pursuant to New York law, which prohibited use "by any individual or organization for religious purposes."  Good News Club, 533 U.S. at 103-04 [***].  As in Lamb's Chapel, the Court held that the school board acted in violation of the Christian group's First Amendment rights in that the group sought access to school facilities to discuss morals and character development from a religious viewpoint.  See id. at 108 [***].  Rather than excluding the subject matter of religion, the Court held, the school board unconstitutionally discriminated against the Christian group's religious viewpoint on an issue otherwise permitted in the forum.  See id. at 109-10 [***].

    At the HFL the subject matter open for expression is the winter holiday season, including Christmas.  The County permits the sponsorship of displays regarding the secular viewpoint of Christmas (i.e. Santa Claus with a sleigh pulled by reindeer and Christmas trees), the commercial viewpoint of Christmas (i.e. that the holiday is a time for the giving and receiving of decoratively wrapped gifts) and the fanciful viewpoint of Christmas (i.e. various animals and figures participating in gift giving and winter time activities).  The County, however, rejected Calvary Chapel's application to sponsor a display representing a religious viewpoint of Christmas (i.e. a cross and the words, "Jesus is the reason for the season").  Cf. County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 579 [***] (1989) ("As observed in this Nation, Christmas has a secular, as well as a religious, dimension.").   Following the reasoning of the Supreme Court, a display which is "overtly religious" in nature may also be characterized as reflecting the holiday of Christmas from a religious viewpoint.  See Good News Club, 533 U.S. at 111 [***].

    In sum, the County created a non-public forum, or at most a limited public forum, in which sponsors may recognize the winter holiday season including Christmas.  Accordingly, the County may exclude other subject matter.  But, whatever the term used to describe this forum, the County may not exclude alternative viewpoints with respect to the holidays included in the HFL.   It is a violation of Calvary Chapel's First Amendment rights, therefore, to exclude its religious viewpoint of the holiday of Christmas.

   4.    The Establishment Clause Defense

   The Court notes that "the government may acknowledge Christmas as a cultural phenomenon" without triggering First Amendment Establishment Clause [***] concerns.  See Allegheny, 492 U.S. at 601  [***]

[* * * * *]

    Unlike the factual situations of Lamb's Chapel and Good News Club, within the HFL, Calvary Chapel's proposed display will appear side-by-side with unsponsored displays erected by the County.  Moreover, based on the evidence including photographs of displays and a video of a previous HFL presented during the evidentiary hearing, the sponsorship signs which accompany sponsored displays are not obvious to the casual observer.  Thus, it is possible for the community to view Calvary Chapel's proposed display as an endorsement by the County of the religious message contained therein.  It is necessary, therefore, that Calvary Chapel's proposed display be modified to state "Calvary Chapel says---Jesus is the reason for the Season" to avoid the potential for an Establishment Clause violation thru any argument that the County endorses Calvary Chapel's viewpoint.  With this modification no reasonable observer can construe this allowance as an endorsement by the County of Calvary Chapel's religious viewpoint.

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    Christmas is the holiday commemorating the birth of Jesus Christ; He is the reason for the holiday's beginning and existence.  Therefore, "Jesus is the reason for the season".  Not only should private groups be allowed to express this historical fact, but also government should be allowed to acknowledge it, as well.  If a holiday such as Thanksgiving, Christmas, or Good Friday is based on a documented event in world history that so happens to be significant to Christians, that historical significance is what government should be recognizing in honoring the holiday.  Without recognition of the birth of Christ, there would be no reason to have Christmas.  Therefore, "Jesus is the reason for the season" is an appropriate message.]

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