CHICAGO — On quiet nights during the Christmas season, Ed O’Malley enjoys visiting the Nativity scene he helps set up every year in an Arlington Heights park.

He’ll check whether the wind has blown over a statue, or whether any lights have gone out.

On relatively warm evenings, many families will be out and about, O’Malley said. Usually, they’ll end up in front of the depiction of infant Jesus.

“Many times, you’ll see the little children will look in and they’ll touch the statues,” said O’Malley, 64, of nearby Prospect Heights. “A few times, you see a father or a mother just get down on a knee, and you can see that she’s explaining to them what this is.”

Despite some misconceptions — stemming from the First Amendment’s separation of church and state — private groups can put up Nativity scenes on public property as an expression of free speech after a federal judge ruled in 1988 that religious exhibits could be erected if maintained by private groups.

Private groups can put up Hanukkah menorahs on public property to celebrate the Jewish holiday. Likewise, private groups can put up atheist, satanic, artistic, political, apolitical, eco-modernist or anarcho-pacifist displays on public property, if they so desire.

The right to erect religious displays on government land wasn’t always clear — especially in December 1987, when government workers in Chicago began dismantling a Nativity scene in the Loop’s Daley Plaza, almost throwing the statue of the baby Jesus into a trash bin at one point and prompting members of the public to shield what was left of the display with their bodies.

O’Malley said he’s learned much about the First Amendment as president of American Nativity Scene, a group that has helped put up more than 200 Nativity scenes on public property across the country.

The group was founded in 2012 by O’Malley and his father-in-law. They believe that erecting Nativity scenes on public property is a good way to help keep the birth of Jesus at the center of a Christmas season that they say has become far too commercialized.

“Christ is the reason for the season,” O’Malley said.

With the backing of an anonymous donor of Nativity sets and conservative public interest law firm Thomas More Society, American Nativity Scene has helped put up scenes at public libraries, parks and courthouses.

The group’s main goal is to display them in the country’s 50 statehouses.

When O’Malley and his father-in-law created American Nativity Scene 12 years ago, about six or seven state capitol buildings, including the one in Springfield, had regular Nativity displays, O’Malley said. Since then, under American Nativity Scene’s watch, 43 state capitols have put up Nativity displays at least once.

To commemorate the 250th anniversary of the founding of the United States, American Nativity Scene will make “an all-out push” and try to have a Nativity scene on display at every state capitol during the 2026 Christmas season, O’Malley said.

Adding a state to the tally isn’t an exact science. American Nativity Scene needs to find people in that state willing to form a local committee that will approach local officials about putting up a Nativity scene on capitol property.

O’Malley said he has used friends and the Thomas More Society’s network to identify people who might be interested in forming a local committee in states lacking displays in their capitols. He’s also called random churches and local religious organizations like Knights of Columbus chapters, he said.

“We want to be able to say that someone has a Nativity up in every state capitol,” O’Malley said. “I mean, we got Alaska and Hawaii — we got them one. They were interesting. You talk to a lot of great people.”

Steven Melia, a Wyoming resident involved with local religious groups who has helped put up a Nativity scene at the statehouse in Cheyenne for the past four years, said he doesn’t remember how exactly O’Malley got in touch with him.

After Melia agreed to help advance American Nativity Scene’s mission, O’Malley sent Melia a Nativity set and Melia’s rancher friend built a wooden structure to house it, Melia said.

It’s fairly easy to schedule blessings of the Nativity set at the Wyoming statehouse and get permission to leave it up during the season, Melia said. He said the capitol hosts all sorts of school, religious and community gatherings throughout the year.

“The capitol belongs to everybody … I didn’t really know that at the beginning,” Melia said.

Other than finding people to attend the blessing, pretty much all Melia has to do is buy insurance for the event and fill out a few forms, he said. One optional form is for inviting the governor, who showed up to the Nativity blessing the first three years, Melia said.

O’Malley said he and his father-in-law decided to start American Nativity Scene after facing pushback while trying to erect a Nativity scene in 2012 in North School Park in Arlington Heights.

O’Malley’s father-in-law brought in the founder of Thomas More Society, Tom Brejcha, who wrote a “strongly worded” letter to the park district about the pair’s right to put up religious displays on public property, according to O’Malley.

Brejcha said he considers the 1988 ruling that protects the right of private groups to put up religious displays on public property as forms of free speech a “landmark” ruling.

In summer 1987, the U.S. 7th Circuit Court of Appeals ruled that a Nativity scene in Chicago’s City Hall violated the First Amendment’s ban on government establishment of religion. Judge Joel Flaum wrote that City Hall visitors would be left with the unavoidable impression that the city tacitly endorses Christianity.

In December 1987, a group put up a Nativity scene in Daley Plaza without posting a $100,000 bond demanded by the Public Building Commission of Chicago, which administered the plaza. The commission demanded the bond to cover the cost of defending itself against possible First Amendment lawsuits.

After government workers began tearing down the plaza Nativity scene — almost throwing the statue of the baby Jesus into a trash bin at one point — members of the public intervened, shielding what was left of the display with their bodies.

In a case stemming from the bond dispute and Nativity scene dismantling, federal judge James Parsons in November 1988 ordered the building commission to allow the Nativity group to put up a display without posting a bond.

Parsons wrote that the commission had misplaced fears that allowing religious displays could violate the First Amendment’s ban on government establishment of religion.

He deemed the plaza a public forum and wrote that “religious expressive conduct in a traditional public forum enjoys the same protections afforded political, artistic, or other types of protected speech under the First Amendment.”

O’Malley, who is also part of the group that continues to put up a Nativity scene on Daley Plaza every year, said that after the Arlington Heights park Nativity scene was successfully erected thanks to Brejcha’s letter, he and his father-and-law started to think about how they could expand.

The idea of placing Nativity sets on other government land, especially state capitols, “clicked,” O’Malley said.

Thomas More Society Executive Vice President Thomas Olp said the firm supports efforts to put Nativity scenes on public property and has a standard letter it sends to public officials explaining why religious displays on public property are allowed.

Olp said the firm hasn’t had to file any lawsuits on behalf of American Nativity Scene.

“Not to say there’s anything wrong with the free exercise of religion, but the free speech rationale cut through a lot of the opposition to this,” Brejcha said.

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