Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Since I often write about cases involving nativity scenes on public property, I am noticing a new trend, a new argument being hinted at by those who demand such public displays; the argument is that not only are such public displays constitutional, there is a positive right to have such displays. The latest example is a battle in Port. St. Lucie, FL, where the city council has decided no longer to have a nativity on city hall grounds and a critic of that decision says:
"It's not that I want to win this," he said. "I'm doing this because it's a right biblically, and it's a right constitutionally."
Well no, it's not. It's one thing to argue that religious displays on public property are not unconstitutional; in many cases, that position is certainly correct. It's quite another to argue that a decision not to put one up is a violation of anyone's rights; no one, obviously, has a right to have their religious displays placed on public property. This is every bit as ridiculous as the LA county worker claiming that taking a tiny cross of the LA county seal violated his rights.
We see all these fights every year and it seems to me that the solution is very simple. This is how the Supreme Court should handle these cases (and they have an opportunity to do so in the Summum cases from the 10th circuit if they accept them on appeal):
1. The government may not pay for any religious display on public property.
2. If a private group wishes to place a religious display on public property, the governmental entity (whether a city, township, county or state) can either accept or reject the proposal, but if they accept the display they must establish a limited public forum. Such a forum would then be subject to existing case law on such fora, well established in many rulings over the years.
This solves the problem completely. It eliminates the subjective decision making on whether a given display has enough secular symbols to water down the message of endorsement (which leads to absurd results like the Court declaring that the menorah is a secular symbol). It eliminates any equal protection problems. It eliminates any problem of treating any religious group as a second class citizen by denying them access granted to other religious groups. It's a bright line rule, so it should appeal to Scalia and Thomas. It really makes perfect sense.
Comments
As an ex-Christian who retains a moderate knowledge of the Bible, I am rackng my brains trying to come up with a passage warranting the "right" to put up Nativity displays on public property.
Posted by: Eamon Knight | December 13, 2007 9:52 AM
Here's how the law works in North Florida:
Fundamentalists do something.
A court rules it's illegal.
The Fundamentalists do it anyhow.
The thing is, in places like Port St. Lucie (a place I know fairly well), most of the populace are fundamentalists. That's true in a lot of places in Florida, most of which is much more like Mississippi than it is like Miami. When the majority of the population believes that Jehovah is telling them what to do, why should they listen to a mere court?
Posted by: Mike O'Risal | December 13, 2007 10:00 AM
Eamon: especially considering that the first Nativity display in history is uncontroversially attributed to St. Francis of Assisi for the Christmas Eve of 1223...
Posted by: Aureola Nominee, FCD | December 13, 2007 10:06 AM
Why do you hate Canada so much, Ed?! Just because a Canadian law makes city governments put up Christmas trees and America doesn't, I ... um ... sorry, wrong thread. But I'm sure there's an anti-Canuck sentiment in here somewhere, if I just look hard enough.
Posted by: Jeff Hebert | December 13, 2007 10:12 AM
Objection! :)
This still doesn't solve the problem of a menorah (or cross) being declared a secular symbol. Who decides whether a display is religious or not?
Posted by: nal | December 13, 2007 10:12 AM
An asshat Green Bay, WI city council member is using exactly the gambit you describe.
"Fradette paid for the statues and told the committee he believed the U.S. Constitution upholds the right for citizens to display symbols of their religious beliefs on publicly owned property, as long as it's not publicly funded and that property also is made available for displays of other religions. "
http://www.greenbaypressgazette.com/apps/pbcs.dll/article?AID=/20071212/GPG0101/712120747/1206/GPGnews
Posted by: Winnebago | December 13, 2007 10:16 AM
A point which I think is implicit in Ed's post, but I'd like to emphasize (and if it's not implicit in Ed's post, then it's my own addition to his argument, with which I wholly agree):
As a limited public forum, the governmental entity must be entirely neutral between all such displays. This would include displays not only by Muslims and Hindus but by Santerians, Satanists, etc.
In other words, when you're willing to allow an upside down cross on city property, then you can put a right side up one there. Otherwise government is establishing preferential treatment for one religion above others.
Posted by: James Hanley | December 13, 2007 10:25 AM
Maybe I'm slow this morning, Ed, but I'm not quite sure I understand your meaning regarding fora. What would be the purpose and authority of the fora?
Posted by: xebecs | December 13, 2007 10:46 AM
The usual pattern is city fights for legal right to have city paid for Nativity, city loses court fight, switches to privately paid for Nativity without any other allowed use, loses subsequent court fight and amends policy to a 'limitted forum', other religions and the occasional humorist add their own displays, local Christian Fundamentalists go berzerk that other religions got space, city decides to eliminate Nativity and associated 'limitted public forum' entirely rather than have a 'limitted forum' with non-Christian displays and local Fundamentalists then fume about how the city is so anti-Christian.
Posted by: Benjamin Franz | December 13, 2007 11:18 AM
There's nothing in the Bible about nativity scenes anywhere; even in churches.
Posted by: Rev. AJB | December 13, 2007 11:19 AM
Ah, how fundie Christians do love their chosen graven images!
Posted by: RAM | December 13, 2007 11:44 AM
Why don't these people just put their nativity scenes up in their own yards? No government stormtroopers are going to bust em up. Of course, the whole point is the argument, not the display. These guys want to hype the war on Christmas BS to give the impression that big bad government is really a communistic plot to overthrow their, apparently, very fragile religious beliefs. Crybabies.
Posted by: Scott R | December 13, 2007 12:24 PM
xebecs wrote:
In first amendment law, "public forum" is a term of art. There are traditional public forums, designated public forums and limited public forums. The basic principle governing all of them is that the government cannot give a forum to one group to express their views but refuse that forum to another. This applies in a wide range of situations. If a public park may be reserved by groups in the community and used for rallies, protests, and so forth, the government cannot, for example, say that Christians may hold such rallies but not Muslims or Buddhists (or for that matter, they can't allow a pro-union rally but not an anti-union rally). The government must maintain viewpoint neutrality.
What I'm saying is that if a government entity, a city for instance, allows one group to put up a display they can only do so if they establish a limited public forum and allow access to it on an equal basis without regard to viewpoint.
Posted by: Ed Brayton | December 13, 2007 12:34 PM
To add to what Ed just posted, I did a quick look-up for "limited public forum" and found this: " A limited public forum is created when public property is opened for a limited purpose. An example of a limited public forum is a meeting room on a college campus reserved for discussion of global politics for three hours a week. In that case, the school could prohibit discussion of other Topics. In a limited public forum, restrictions on speech are allowed if they are viewpoint-neutral and reasonable in light of the purpose of the forum."
Posted by: Taz | December 13, 2007 1:56 PM
Thanks for the clarification, Ed.
Posted by: xebecs | December 13, 2007 2:36 PM
As opposed to Limited Public Flora, which is the attempt by Utah towns to obscure monuments to Summum through the clever placement of foliage.
Posted by: kehrsam | December 13, 2007 4:03 PM
Because these public displays of religion using public spaces or resources are primarily a way for certain vocal, politically influential groups of Christians to mark their territory. It's a little like a dog peeing on a tree.
Posted by: Doug | December 13, 2007 4:34 PM
Here's a nativity display that aims to win a few battles in the War On Christmas.
Posted by: mark | December 13, 2007 6:21 PM
They should be careful what they wish for. Others could surround their graven images with other graven images, and thereby hide the christianists' religious exhibit.
Posted by: raj | December 14, 2007 9:13 AM