Creches and 1st Amendment Issues: A Nice Letter

I read a nice comment (December 23, 2007 9:15 am) from a reader called “Tenacious G” regarding the Manitowoc creche controversy. (Manitowoc Herald Times Reporter).

It is succinct and deserves preservation and perusal. I wish all of my friends a very Merry Christmas! But I also look forward to a 2008 in which we as Americans can learn to appreciate diversity, respect tolerance, and work to preserve the very special nature of America in regards to freedom of religious thought that requires our government to not take sides in this spiritual debate.

(Links added were placed there by me.)

“Must I Spoon-Feed You??”

Generally, the nativity (or whatever) must be joined by other (secular or non-secular) symbols so as not to give the impression that the government is “respecting an establishment of religion”. But the nativity (and any other recognized symbol) MUST be allowed (if any is) as a matter of not “prohibiting the free exercise (of religion)”.

IN GB and Manitowoc, the FFRF is correct because the nativities stand alone.

The GB Mayor is embarrassingly ill-informed because he thinks (has thought?) that: (1) he had a right to have the nativity stand alone, (2) if he was to keep the nativity, he’d have to accept any old crazy displays that any fool came up with (as opposed to only recognized religious symbols), (3) that it’s acceptable to press the “pause” button on accepting other displays and wait until after Christmas to remove the sole-standing nativity.

Take Your Time With The Following:

The First Amendment

Amendment I of the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Wall of Separation

“Once the government becomes involved with religion and acquires the power to promote religious beliefs, it also acquires the power to supress them. The way to ensure religious freedom [for the creators of the Bill of Rights] was to separate church and state so government could not interfere with religious views and practices.” (ACLU, Briefing Paper #3). Thomas Jefferson referred to this practice as the creation of a “wall of separation between chuch and state,” and the U.S. Supreme Court has set up these guidelines towards the fulfullment of this practice (Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)).
Neither state or local government:

1. Can set up a church
2. Can pass laws that aid one religion, all religions, or favor one religion over another
3. Can force a person to attend or stay away from church, or believe in any religion
4. Cannot punish a person for holding or professing religious beliefs
5. Cannot levy a tax, in any amount, to support any religious activities or institutions.
6. Can openly or secretly participate in the affairs of any religious organization, or vice-versa.

The Lemon Test

To assist both themselves and the lower courts on decisions in these matters, it must first be determined if the act of the governmental body (whether law or conduct) can and should be considered as a violation of the establishment clause, and the three part test for this is taken from the case of Lemon v. Kurtzman, 403 U.S. 602 (1971).
1. whether it has a secular purpose
2. whether it has as its primary or principle effect advancing or inhibiting religion, and
3. whether it fosters an excessive entanglement of government with religion.

This test has not proved to be easy to apply, and has allowed decisions of all kinds by the lower courts, as it is possible to make a contrary decision on the same set of circumstances with a different panel of judges, according to Stephen Carter, Professor of Law at Yale University, in his book Culture of Disbelief. . Sandra Day O’Connor, in her partial concurrence in the case of Lynch v. Donnelly, 465 U.S. 688 (1984), proposes the court also question whether the government is, by their law or conduct, endorsing or disapproving of religion and/or religious belief. (Gaustad’s Church and State in America contains a portion of her opinion that includes these comments).

Supreme Court Cases

Three major cases have been heard by the Supreme Court concerning holiday and religious displays, the first in 1984 (Lynch v. Donnelly, 465 U.S. 1984), the second in 1989 (Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)) , and the third in 1995 (Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995)). Once decided, the court has been disinclined to deal with the minutia of decision making, and has turned down appeals as recently as 1998 concerning lower court rulings on the topic (i.e. Elewski v. Syracuse, N.Y., 123 F.3d 51(2d Cir.1998)(cert. denied 118 S.Ct.1186).

Lynch v. Donnelly

Lynch v. Donnelly, 465 U.S. 1984, concerned a Pawtucket, Rhode Island city government annually paid Christmas season display for over forty years. This display, in the city shopping district, included a nativity scene, as well as a Santa Claus house, a sleigh pulled by cutout figures of reindeer, candy striped poles, carolers, a large banner that reads “SEASONS GREETINGS” and hundreds of colored lights. The establishment clause concern was confined to the nativity scene, but the entire context in which it appeared was relevant to the Court’s decision. Chief Justice Berger wrote the majority opinion for the case, stating that in the context of the whole scene, the nativity scene did not constitute advocacy of a particular religion, the crèche held a secular purpose, and that a symbol almost two millenniums old cannot “taint” an exhibition, and that a “crèche is no more an advancement of religion than a recognition that the name of the holiday itself derives from “Christ’s Mass.” (Gaustad 1999, direct quotation from Lynch v. Donnelly, 465 U.S. 1984.) The decision was a 5/4 split, for the display, and it should be noted that bare majority decisions such as this do not, historically, provide solid precedents for the lower courts, or often, final decisions for the Supreme Court.

Allegheny County v. ACLU

To this effect, the case of Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 , was accepted and heard in 1989. The case concerned two holiday displays placed annually on public property in Pittsburgh’s downtown area. One of the displays was a crèche, placed on the Grand Staircase of the Allegheny County Courthouse, “the main, most beautiful, and most public” part of the building according to trial transcripts. The second, a Christmas tree and a menorah, stood next to other items including a sign saluting liberty, were located outside, about a block away from the other display. Both displays had been donated to the city, located on government property, and were being maintained by public funds, and as such were considered government sponsored displays.
The court decided that the crèche did violate the establishment clause, while the display with the menorah did not. In the second display, the menorah did not stand alone, but with, as before stated, the Christmas tree (the court declared that “the Christmas tree, whatever its origins, is not regarded today as a religious symbol”) and the sign saluting liberty. Taken as a whole, it was considered acceptable “because it was not considered and endorsement of religious faith, but simply a recognition of cultural diversity.”

The crèche was ruled to breach the wall of separation between church and state because it stood alone, without any symbols of a less than religious intent, such as Santa, sleigh, or reindeer. The sign stating that scene was a donation by the Holy Name Society did not relieve this endorsement of a particular religion, but may have further reinforced the breach with further evidence that the government was supporting and promoting a particular religion. The three key factors, based on the proliferation of the pens of the Justices on this case (five opinions were written), under which the concept of endorsement should be tested, are context, composition and location. In concern for context, the secular aspects of Christmas and its role as a national holiday, not a religious holy day, must be emphasized in a display of religious symbols if it is not be considered a violation of the establishment clause.
These cases, to date, have created the “rule-book” as to publicly sponsored displays on public property, with individual cases now heard by lower courts. All recent appeals to the Supreme Court level have been denied. One other case exists concerning displays on public property, this one concerning both free speech and the establishment clause.

Capitol Square Review Board v. Pinette

The final case is that of Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995). The syllabus from the Supreme Court Collection at Cornell University states:
Ohio law makes Capitol Square, the Statehouse plaza in Columbus, a forum for discussion of public questions and for public activities, and gives petitioner Capitol Square Review and Advisory Board responsibility for regulating access to the square. To use the square, a group must simply fill out an official application form and meet several speech neutral criteria. After the Board denied, on Establishment Clause grounds, the application of respondent Ku Klux Klan to place an unattended cross on the square during the 1993 Christmas season, the Klan filed this suit. The District Court entered an injunction requiring issuance of the requested permit, and the Board permitted the Klan to erect its cross. The Sixth Circuit affirmed the judgment, adding to a conflict among the Courts of Appeals as to whether a private, unattended display of a religious symbol in a public forum violates the Establishment Clause.

The most important factors in this case are whether a display has been placed in a public forum, and the type of public forum. In the case of Perry Education v. Perry Local Educator’s Association, 460 U.S. 37 (1983), the Supreme Court identified three types of public property for first Amendment expression purposes: the traditional public forum, the open or designated forum, and the non-public forum. These forums were further defined and clarified in the case of United States v. Grace, 461 U.S. 171 (1983). Traditional public forums include streets, sidewalks, and parks. Non public forums include property owned by the government that is not used for public expression purposes, such as government buildings, school stadiums, the Supreme Court itself. Open forums are other public owned property that has been designated, by government action, law or permissiveness, to be used by private groups (for example, places where folk festivals, public concerts, and/or political rallies have been held). Private speakers cannot be restricted from use of those places unless they can demonstrate a compelling government interest for such a content-based exclusion.

The Ohio government believed it had first amendment grounds for prohibiting the the KKK’s erection of a cross on such property.
The display was held to be private religious speech, protected also by the first amendment in its free speech clause. The local government felt the display would be understood by other citizens as being erected and mainted by them, but the Supreme Court declared that since Ohio could demand that ALL displays on the property be identified as those of private citizens, they had not presented a compelling reason for turning down the KKK’s permit.

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About Robert Freedland

A concerned American and supporter of Senator John Kerry, I am the author of the blog "John Kerry for President 2008". I am also the author of the stock market investing blog, "Stock Picks Bob's Advice".
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2 Responses to Creches and 1st Amendment Issues: A Nice Letter

  1. Darrell Prows says:

    Someone’s law review article, I’d guess. Very thorough, but clearly not something just whipped out on the spur of the moment.

    And even as clear as this is there are always those idiots who are sincere that it applies to everyone but them. Can of like the other fools who say that no one has to pay income taxes because….

  2. Tenacious G says:

    Full disclosure:

    Only the initial analysis is my work. From “the First Amendment” on is just copy/pasted from other sites.

    My initial intention was to demonstrate how simple it was to find factual information related to religious displays on gov’t property.

    Thanks, though, for posting on this site!

    ~Tenacious G