Experts: 'Merry Christmas bill' won't protect schools from lawsuits

Legislation dubbed the "Merry Christmas bill" seeks to legalize the celebration of the holiday in Indiana public schools.

Senate Bill 233 would allow students and employees to honor Christmas by saying traditional greetings and displaying religious symbols — as long as one other religion or secular belief is also represented. The goal, said Sen. Jim Smith, R-Charlestown, the bill's author, is to protect school corporations from lawsuits alleging that they're endorsing one religion over another — a violation of the Establishment Clause of the First Amendment.

But legal experts say the bill likely will not accomplish what it sets out to do.

The right to say "Merry Christmas" or "Happy Hanukkah" to someone while in school is not being threatened in the first place, said Suzanne Eckes, who teaches educational law and policy at Indiana University-Bloomington. The bill also will not stop certain organizations from filing lawsuits against schools and other government bodies on the basis of a constitutional violation, experts say. And, if schools are sued, such a law would be unlikely to help them prevail in court.

"I think it's a well-intentioned bill," said Daniel Conkle, a constitutional law professor at Indiana University's Maurer School of Law. "But ... the Indiana legislature simply cannot immunize a public school from a challenge under the Establishment Clause of the First Amendment no matter what the Indiana legislature attempts to do."

The Establishment Clause prohibits governments from establishing an official religion or favoring one religion over another.

What would matter more in court is how the symbols are presented, he said. A very large and prominent nativity scene along with a smaller secular element may be considered unconstitutional and may open the possibility of a lawsuit even if it's in accordance with SB 233, Conkle said.

"The court will say that the overall character of the display is still to promote or endorse religion," Conkle said. "The U.S. Supreme Court has adopted a very contextualized approach. Every detail matters."

Eckes, who's more critical of the bill, said she has yet to hear of or find a lawsuit filed against someone for saying "Merry Christmas" or "Happy Hanukkah." Celebrating Christmas and other religious holidays is already legal, she said.

But Smith, R-Charlestown, said school corporations are often dragged into costly and lengthy legal battles about religious displays and many choose to not engage in litigation because of limited resources. He acknowledged that the legislation may not stop lawsuits because "you can sue anybody for anything."

"I believe (SB 233) gives the school corporations a lot more protection when they're celebrating Christmas," said Smith, who introduced a similar bill last year. "Celebrating Christmas at school is legal today, it's legal yesterday. (SB 233) gives people some better guidelines."

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said he fears that because of the bill, schools will believe they can do something that's considered unconstitutional.

"The General Assembly needs to understand that they can't pass laws that change the Constitution," Falk said. "If something is unconstitutional, the fact that there's a legislation doesn't make a difference."

SB 233 passed the Senate last month with a 48-2 vote. The House Government and Regulatory Reform Committee, where the bill is assigned, heard it last week but has not voted on it. Smith said he's planning to make a few amendments on the bill.

The latest version also allows cities and towns to have religious displays as long as more than one religion is represented. Smith said he plans to remove that part of the bill and simply focus on school corporations. The current version also requires the State Board of Education to decide how schools should interpret the law. Smith said that task would be better left to local school boards.

Smith patterned his bill after one that was signed into law in Texas in 2013. Others, such as Missouri, Alabama, Tennessee and Oklahoma, also had similar legislation.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.