Little Donkey, Away in a Manger and the Nativity

By | 11 December 2013

Little donkey, little donkey                                       
Had a heavy day
Little donkey
Carry Mary safely on her way…

Image courtesy of Gonmi

Image courtesy of Gonmi

By Francesca Marsden

Little Donkey was written by English songwriter Eric Boswell, and topped the UK charts for several weeks at the end of 1959. The carol, telling of Mary’s journey to Bethlehem on the donkey, is ever-present in children’s nativity plays. Away in a Manger, first published in the nineteenth century, its author unknown, is also sung sweetly by the young casts of the plays, and depicts the nativity scene, with ‘the little Lord Jesus, asleep on the hay’. It seems unlikely that the sweet innocence of these carols could or should link to any legal controversy, but it being my job with this blog to find a nice (if tenuous!) link to the law, I have managed!

In the UK in recent years, nativity plays have sparked debate amongst parents who want to to take pictures and videos of their little ones’ starring moments. In 2010, there were many reports of parents being banned from taking pictures for the family album, or videos  to cherish (and embarrass with on their child’s 18th!) Many schools feared that allowing this was a breach of data protection policy. They were particularly concerned given the uptake of social media, and the consequent speed at which these items can be shared. Of particular concern is adoptive or foster children being traced through social networking sites. The debate caused the Information Commissioner to issue formal guidance on the matter, which can be found here. The Commissioner asserted that as long as the material is for personal use, and that a sensible degree of common sense is utilised, recording these moments through photography and film is permitted, and not in breach of the Data Protection Act. Ian Shoesmith’s BBC article on the debate considers that ‘ultimately, it’s about striking the balance between protecting the relatively small number of at-risk children and the rights of the vast majority of parents to enjoy looking at photographs recording their children’s special moments.’ Search SOLO using key terms and restrict to the Bodleian Law Library for publications on Data Protection law in the Law Bod.

Image courtesy of Keith Williamson

Image courtesy of Keith Williamson

It is not just nativity plays which can be linked to the law. Nativity scenes on public display on land and in buildings have also caused controversy throughout history, particularly in the United States, where nativity scenes, often termed crèches, have been the subject of several lawsuits. In 1969, the The American Civil Liberties Union contended that a nativity scene on the Ellipse in Washington, D.C., part of a Christmas pageant sponsored by the Interior Department, suggested government support for religion, which violates separation of church and state. After a four-year case, the United States Court of Appeals eventually considered that the nativity should either be removed from the pageant or that the Interior Department should should disassociate themselves from the display. From 1973 the nativity was no longer included, although in recent years it has been re-introduced.

A key case in law relating to nativity scenes is Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355 (1984) . Similarly to the case above, this addressed whether the inclusion of a nativity scene in the Christmas display of Pawtucket, Rhode Island, violated the Establishment Clause of the First Amendment to the US Constitution, that being the prohibition of government establishing an official religion, endorsing any one religion or endorsing non-religion, thereby ensuring separation of church and state. The court ruled that the nativity scene had ‘legitimate secular purposes’ as part of an all-encompassing holiday display. Conversely, Allegheny County v. A.C.L.U, 492 U.S. 573, 109 S. Ct. 3086 (1989) resolved that a nativity scene on the staircase of Allegheny County Courthouse was unconstitutional, since the nativity was the sole focus, with no attempt at secular symbols. Today, nativity scenes are permitted in the US, as long as they adhere to the so-called ‘Reindeer Rule’, a term used by several commentators to refer to the regulations stipulating that religious displays must be equated with non-religious symbols. The issue is still very current – in June 2013, Texas Governor Rick Perry introduced the Merry Christmas Bill, which permits the display of nativity scenes and Christmas trees in schools. A similar law has been announced in Oklahoma City this week ‘to ensure schools can celebrate the religious reasons for Christmas without fear of any backlash’. An interesting article on ABA journal from 3rd December 2013 also reflects the ongoing currency of the issue. See the USA collection in the Law Bod for material relating to the Establishment Clause. Texts such as First Amendment Law in a Nutshell by Barron and Dienes include easy to read chapters on freedom of religion.

Finally, returning to the UK, a story in the media on 9th December 2013 kindly provides another link between Little Donkey and the law. The owner of a real-life Little Donkey starring in a nativity play in South Wales this Christmas must ensure the child playing Mary wears a safety hat as the donkey proceeds through the town centre. This forms part of the donkey owner’s licence agreement.

Thanks to this blog, next you time you or I hear Little Donkey or Away in a Manger, we’ll be helpfully aware of all the legal links they (tenuously) suggest!

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