Dispatches from the Creation Wars

The WorldNutDaily is reporting on a Federal court case involving Palm Beach, Florida, where they allowed a Jewish menorrah to be displayed in a public park, but refused to allow a Christian nativity scene. Both were paid for with private funds. The city was obviously wrong to do so and they have now settled the case, reversed the policy, and agreed to pay the legal fees for the plaintiffs. All well and good. But here’s the thing that I find bizarre about it:

As WorldNetDaily reported, the suit claimed for two years the city refused to review requests to have a nativity scene placed alongside menorahs, a practice Thomas More claims demonstrates hostility toward Christians.

But is that true? Does it really display “hostility toward Christians”, or does it display an ignorance of the law that has largely been fostered by Christians who have long claimed that the courts, because of their anti-Christian zeal, have said you can’t have nativity scenes at all? I suggest it has been the latter. In so many of these church-state cases that the religious right likes to trumpet, as when a principal wrongly tells a student they can’t read their bible during lunchtime, or in a case like this where a city wrongly tells a group they can’t put up a nativity display, they are not doing what the law says, but are doing what so many religious right demagogues have claimed the law says. So desperate are they to convince their followers that those evil judges are just anti-Christian and want to stamp out Christianity from the public square that they constantly distort the actual court rulings and exaggerate what they say out of all proportion.

Nativity scenes are a good example of this. What the court rulings have generally said is that if a city allows private groups to put up holiday displays on public property, they have to allow all religious groups to do so, and that they cannot use public tax money to pay for such displays. Seems fair and reasonable, right? But that’s not good enough for so many demagogues in the religious right. They can’t tell their followers THAT because it actually IS reasonable, so they tell them that the courts have outlawed nativity displays, when in reality all they have disputed is that tax money can be used to pay for them or that those displays be given exclusive access. Let me give some examples of this claim being made.

From Christian Leadership Ministries:

The courtsí misinterpretations of the First Amendment have usually taken one of two positions. Under a view of “strict separation,” the courts acknowledge the right of free expression of religious beliefs so long as it is confined to the home, the family, the church or synagogue, or some other inconspicuous place. Or by some twisted view of the “free exercise” clause, the courts have decreed that the public square must be protected from Christmas carols, Nativity scenes, and other Christian symbols in order not to offend or infringe on the rights of those who hold different (or no) religious beliefs.

From David Limbaugh, author of Persecution: How Liberals are Waging War Against Christianity. This is the publisher’s blurb to sell the book:

They may not get thrown to the lions any more, but today’s Christians endure subtler forms of martyrdom, argues this strident manifesto. Limbaugh (Absolute Power: The Legacy of Corruption in the Clinton-Reno Justice Department) recites a litany of abuses and insults perpetrated, he claims, by separation-of-church-and-state absolutists and the forces of secular humanism. Most of them are familiar complaints of the Christian Right: school children are forbidden to pray before football games; nativity scenes are banned from municipal property…

It is absolutely false to claim that children are forbidden to pray before a football game. Any child or adult, at any time they wish, can pray before, during or after any football game. And as has already been established, nativity displays are entirely legal on municipal property as long as the municipality doesn’t use tax money to pay for it and as long as other religious groups have equal access for similar displays. From the Free Church movement:

The men who drew up the original constitution would be horrified at the way it is now being interpreted, particularly by the courts. This has now led to children not being allowed to pray in State schools, no nativity scenes…

Again, completely false. Children can pray in school and there are nativity scenes all over the place – you just can’t have the government require kids to pray and you can’t expect government to either pay or give exclusive access to nativity scenes. I could easily quote dozens more statements just like this. Now contrast this with the accurate description of the law from the ACLU:

In two recent decisions, the Supreme Court has held that displays of religious symbols such as nativity scenes on public property contravene the Establishment Clause if they convey a message that is primarily religious rather than secular. See Allegheny , 492 U.S. 573; Lynch, 465 U.S. 668 (1984). Under the test of Lemon as refined in Allegheny, the government’s display of religious symbols violates the Constitution where the government’s action “has either the purpose of effect of endorsing religion.” Allegheny, 492 U.S. at 592-93. As Justice O’Connor has formulated the endorsement test, the inquiry is whether an “objective observer,” familiar with the government’s practice and acquainted with Free Exercise values, would view the governmental action a s an endorsement of religion. See Wallace, 472 U.S. at 76 (O’Connor, J., concurring).

In Lynch, for example, the Court upheld a city’s display of a nativity scene together with various secular symbols of Christmas, including a Christmas tree and Santa Claus house. See Lynch, 465 U.S. at 679-85. In Allegheny, however, the Court ruled that a city’s display in the County Courthouse of a creche with a banner proclaiming “Glory to God in the Highest” constituted an impermissible endorsement of religion under the Establishment Clause. See Allegheny, 492 U.S. at 598-602. The Court in Allegheny emphasized the importance of both the setting of the religious symbols and their “patently Christian message.” Id. at 601.

The courts, it seems to me, have struck a very reasonable balance here. There have been exceptions, of course, from lower courts. A federal court last year ruled that it was legal for the NY public schools to ban Christmas displays while allowing Jewish or Muslim displays, but I fully expect that ruling to be overturned as it should be. But the settled case law on such matters is reasonable – the government cannot pay for it and they cannot grant exclusive access to Christian groups because either of those would violate the establishment clause, but as long as private groups pay for it and all religious groups have equal access to the public land, nativity scenes are legal. But if you only listen to the religious right descriptions of those court rulings, you’d think that all nativity scenes are illegal. Is it any wonder, given how popular this kind of exaggeration is, that some school and city officials who are ignorant of what the law actually says start to believe it and make bad decisions as a result? It’s a self-fulfilling prophecy, the more often they claim it to be true, the more often it is acted upon and therefore becomes true.

Comments

  1. #1 flatlander100
    June 30, 2004

    I think you may have overstated the case somewhat by saying that nativity displays on public property are perfectly legal (a) if they are not paid for by public funds and (b) if the same right is granted to other religious groups to set up displays of their own at their own expense. I think there is a third possibility under current law, which would permit Christian groups to claim that nativity scenes are being banned by cities from public parks: a city can if it wishes, without violating the law, ban ALL such displays from the parks, by any group. This would not violate the equal protection clause because applies to all groups, faiths, etc equally. Such as been the trend of recent rulings by Federal courts in Utah, and I think elsewhere.
    I admit I am having a hard time, though, understanding by what possible tortured logic a court could hold that a menorah is OK as part of a seasonal celebration in a public school, but a cross or a creche is not.

  2. #2 Ed Brayton
    June 30, 2004

    I think you may have overstated the case somewhat by saying that nativity displays on public property are perfectly legal (a) if they are not paid for by public funds and (b) if the same right is granted to other religious groups to set up displays of their own at their own expense. I think there is a third possibility under current law, which would permit Christian groups to claim that nativity scenes are being banned by cities from public parks: a city can if it wishes, without violating the law, ban ALL such displays from the parks, by any group. This would not violate the equal protection clause because applies to all groups, faiths, etc equally. Such as been the trend of recent rulings by Federal courts in Utah, and I think elsewhere.

    Yes, cities can do this and some have. But this would still not fit the argument I’m criticizing, the claim that courts have outlawed nativity scenes.

  3. #3 raj
    July 1, 2004

    >I admit I am having a hard time, though, understanding by what possible tortured logic a court could hold that a menorah is OK as part of a seasonal celebration in a public school, but a cross or a creche is not.

    Please cite the case in which a court made such a holding.

  4. #4 Ed Brayton
    July 1, 2004

    Raj-

    I know, it’s pretty ridiculous. But it’s true:

    A New York Federal Judge ruled Wednesday that it is constitutionally permissible for the New York City Department of Education to ban the display of the Christian Nativity during Christmas, while permitting the display of the Jewish Menorah and the Islamic Star and Crescent during Hanukkah and Ramadan.

    The judge ruled that because the US is predominately Christian, the school district was merely trying to “diversify” the religious images and symbols that the children were exposed to and that this justified the policy. That’s pretty stupid, but that’s what he said.

    The ruling came in New York district court. It is being appealed to a higher court, where I fully expect it to lose. If not there, then almost certainly the Supreme Court will take the case and overrule the decision.

  5. #5 steve
    July 3, 2004

    ACLU prose:
    In two recent decisions, the Supreme Court has held that displays of religious symbols such as nativity scenes on public property contravene the Establishment Clause if they convey a message that is primarily religious rather than secular. See Allegheny , 492 U.S. 573; Lynch, 465 U.S. 668 (1984). Under the test of Lemon as refined in Allegheny,…

    Limbaugh prose:
    school children are forbidden to pray before football games; nativity scenes are banned from municipal property…

    On one side, complex analysis which is intellectually demanding. On the other side, easy-to-read strident crap which provokes emotion. Easy to see why the Limbaugh side’s been winning.