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liberty@LC.org

December 20, 2016

VIA EMAIL 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 27699-1916
Jill.Singer@dhhs.nc.gov
Fax: 919-870-4834

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,
Unconstitutional ban on employee Christmas decorations deemed “religious”
December 20, 2016
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 30 2016, sent the following email
(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 email 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 email 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 privately-
sponsored 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 email 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.
Unconstitutional ban on employee Christmas decorations deemed “religious”
December 20, 2016
Page 3

The November 30 email 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, 604-605 (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: http://www.ncdcr.gov/; http://www.newsobserver.com/entertainment/arts-

culture/article116384768.html; http://www.wral.com/state-capitol-tree-lighting-ceremony-executive-
mansion-open-house-this-week/15154406/.
2 December 10, 2016 tweet “Merry Christmas from the North Carolina Executive Mansion!” available at

https://twitter.com/GovOfficeNC?ref_src=twsrc%5Etfw.
Unconstitutional ban on employee Christmas decorations deemed “religious”
December 20, 2016
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, 2016 email 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
Unconstitutional ban on employee Christmas decorations deemed “religious”
December 20, 2016
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, 828-29
(1996); Good News Club v. Milford Central School Dist., 533 U.S. 98 (2001). The November
30, 2016 email sent the unmistakable message that employees who would display
decorations of religious symbols do not have worthwhile displays, while those with non-
religious 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 email 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
Unconstitutional ban on employee Christmas decorations deemed “religious”
December 20, 2016
Page 6

CC:
VIA EMAIL
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: 919-870-4829

Daniel Stanley, Division Director, Division of Public Health

VIA FAX:
Pat McCrory, Governor