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Holiday decorations, religion clauses and the Supreme Court

By Marci Hamilton
FindLaw Columnist
Special to CNN.com


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(FindLaw) -- Recently, various incidents involving holiday decorations have shown that the public's -- and even government officials' -- understanding of the legal rules in this area is far from clear. That is disappointing, for the relevant Supreme Court cases were decided more than a decade ago.

One school in Pennsylvania, through its Multicultural Committee, set up a three-part display, with a crèche, a menorah, and a Kwanzaa scene. Under Supreme Court precedent, this inclusive display was surely constitutional. A confused principal, though, ordered that the crèche be removed -- thinking apparently that it was too religious.

In another setting, a firehouse was ordered to take down its largely secular holiday decorations, because neighbors were offended by it. But once again, the order to remove was not mandated by the Constitution. There is no constitutional right not to be offended by bland holiday decorations, even when they appear on government property.

In this column, I will set out the rules on holiday decorations -- which are quite clear -- and discuss the larger meaning, and prescience, of the Court's jurisprudence in this area.

The clear rules on holiday decorations

The Establishment Clause, of course, prohibits the government from endorsing a particular religion. And that is exactly what placing a crèche scene -- all by itself -- on government property does.

Like the 2.5-ton granite monument of the Ten Commandments statue that former Alabama Supreme Court Justice Roy Moore placed in his courthouse, a crèche by itself sends the undeniable message that the government supports a particular religious world view. That violates the Establishment Clause. Constitutionally, our government cannot take sides in the religion wars.

But suppose a display sweeps more broadly -- such as the one in Pennsylvania, which featured a crèche, a menorah, and a Kwanzaa scene, and was erected not under the auspices of religion, but those of "multiculturalism."

In that event, there is no Establishment Clause violation. The message is not one of endorsement for a particular religious viewpoint. It is a message that the government is acknowledging the celebrations of its various citizens. And that is perfectly constitutional.

It is also constitutional, however, for a given Town Hall, school, or other government facility, to have no holiday display at all -- or a predominantly, or even completely, secular display.

As noted above, with respect to the firehouse controversy, no citizen is entitled to have the government acknowledge religion during the holidays -- though each is entitled, thanks to the Free Exercise Clause, to erect any private religious display he or she might wish to. At the same time, there is no constitutional right not to be exposed to the holidays, either.

The larger meaning of the Court's holiday decorations jurisprudence

In setting forth these rules in the 1980's, and especially in Allegheny County v. Greater Pittsburgh ACLU, the Supreme Court was prescient -- well ahead of its time. The Court understood, years before the culture did, that it would be necessary to step back from a solely Christian world view into a world of many competing religious visions. (In Brown v. Board of Education, similarly, the Court was able to hear the voices of those who were being discriminated against in segregated schools well before the larger culture could. And, similarly, it chose the right constitutional rule, long before the culture was capable of fully embracing that rule.)

In Allegheny County, the Court invalidated the placement of a large crèche scene by itself in the Grand Staircase of the Allegheny County Courthouse by the Catholic Church, including a plaque saying as much. The unmistakable message to all entering was that the government supported the particular religious message being supplied by the Church.

Outside, though, the County had placed a menorah and a Christmas tree next to each other. That pairing did not send the same message. The inclusiveness of the display led the Court to uphold the holiday display, just as it had upheld in Lynch v. Donnelly the placement by the government of a holiday display including a "Seasons Greetings" banner, Santa House, Christmas tree, and crèche scene, which was a mix of secular and religious images.

In deciding the holiday decorations cases, the Court properly read the history of the Establishment Clause as a history favoring religious liberty, but not the hegemony of a particular set of religious beliefs. No religious entity gets the government's imprimatur to further its religious mission, under the proper understanding of the Establishment Clause.

Where the government acknowledges Christmas as a cultural phenomenon, no constitutional line has been breached, but the government may not observe Christmas as a holy day by suggesting people praise God for the birth of his son.

It is fortunate that the Court decided the holiday decoration cases is it did, for since then, the country has continued its best instinct to be a haven for all religious believers. There are thousands of religious faiths in America -- an amazing multiplicity. And religious diversity existed here from the very start. Indeed, the truth is that no single religious world view has ever dominated in the United States for more than a short period of time.

Even in our early history, a diversity of Christian sects -- and others -- made important contributions. For example, we owe the Presbyterians thanks for the system of representation adopted at the Constitutional Convention, as well as the concept of a dedicated public statesman. The Baptists contributed strongly to the notion of separation of church and state. The Quakers have offered a strong voice for peace in contrast to all calls to war. And the Catholics are responsible in no small part for the important notion that religious individuals have an obligation to take positions on issues of public importance.

In modern times, many other religions have, of course, each made contributions to American life. We have come to see that there are seeds of wisdom in a large number of religious traditions. And if we follow our past history, as we should, we can all benefit from many of these traditions, Christian and non-Christian alike.

Why complaints of 'Christian persecution' are incorrect

Despite their wisdom and their decades-long history, the Court's crèche cases have faced harsh criticism recently. Commentators have complained that these cases fit into a disturbing trend -- a trend that, they suggest, also includes the holding by the U.S. Court of Appeals for the 9th Circuit that the phrase "under God," in the Pledge of Allegiance, violated the Establishment Clause; the removal of Justice Moore's Ten Commandments statue; and the end of prayer in schools.

Indeed, conservative David Limbaugh has gone so far as to contend that "liberals" (as though many of the political liberals in this country are not Christian themselves) are "persecuting" Christians. Why? Simply because these "liberals" take the position that the government cannot constitutionally endorse Christian-only displays, prayers, and monuments.

But this position isn't a policy option; it's mandated by the Constitution's Establishment Clause, which forbids just such endorsement. Thus, all citizens should support it, regardless of political bent or religious affiliation (or lack thereof).

Moreover, the use of the word "persecution" in this era is deeply ironic. Persecution was just what the Religion Clauses were designed to prevent. Consider, for example, the history of true persecution that presages our own religious liberty -- the Tower of London, the Salem Witch Trials, the shunning of Anne Hutchinson.

Religious persecution is causing someone to suffer -- and in some cases, even to die -- due to his or her beliefs. But Christians are hardly persecuted simply because they are forbidden to move the crèches -- representations of the Christian Nativity scene -- that mark their churchyards, lawns, or homes into Town Hall or the county courthouse.

Instead, it is those of other religions (or no religion at all) who are persecuted when the government sends a particular religious message. How could non-Christians expect equal justice in Justice Moore's courthouse? And when Town Hall features a crèche display, how can non-Christians feel they will truly have an equal voice at town meetings? If a public school offers only Christian holiday symbols, will non-Christian children feel fully included in the education offered?

In the end, it's not necessary for Americans to debate what religious "persecution" really means, for the Constitution has made it clear. According to the Establishment Clause, persecution consists of the government's imposing a religion on unwilling citizens, or endorsing a religion and thus excluding those citizens from full inclusion in public life. According to the Free Exercise Clause, persecution also consists of the government's forbidding religious persons from following their own religious beliefs in private and, in some cases, public settings.

Recognizing religious diversity -- as the Court's cases do -- hardly entails persecution. The alternative, denying religious diversity -- as those who support crèche-only government displays do – is a betrayal of what is best in this country's heritage.

The Court set down clear, correct rules for holiday displays decades ago. We should learn them, adhere to them, and stop debating them -- for they are a correct interpretation of what the Constitution requires.

Columnist image

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chairwoman in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University.


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