The December Dilemma-Nativity Scenes and Candy Canes

The December Dilemma ñ Nativity Scenes & Candy Canes

This article originally ran in the Winter 2000 edition of Liberties, the newsletter of the ACLU/EM

By Denise Lieberman
ACLU/EM Legal Director

Every year around this time we begin to see the sure signs that holiday season will soon be upon us - toy sales, egg nog, office parties, brightly lit homes, and of course ñ the erection of nativity scenes on public property followed by the ACLUís ever-predictable and ardent challenges to these government sponsored religious messages. In a way, these challenges have been some of our finest moments - standing up to violations of civil liberties in the face of extreme public opposition; idealistic vigor in support of the First Amendment. And every year, we stand up to the vicious mud-slinging of the many naysayers in the belief that we are securing one of our most fundamental liberties ñ the freedom of religion guaranteed only by the strict separation of church and state. Indeed, even syndicated columnist Molly Ivins calls the ACLU the ìregular villainî in crËche cases, ìplaying its assigned role in the case as the Grinch.î And this is one of the nicer labels. One editorial writer to the Post Dispatch last year expressed his holiday wish that ACLU staff members receive a lump of coal in our stockings to warm our frigid hearts.

So why did we do it? Because the separation of church and state is at the core of our civil liberties. Because Florissant resident Scott Weiner didnít have an answer for his young son when they went to the Florissant Civic Center in 1997 and he inquired why the large manger scene was placed at the entrance. Because, in the words of Supreme Court Justice Sandra Day OíConnor, religious displays on public property ìsend a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.î 

On Weinerís behalf, we took Florissant to court, and won a resounding victory in district court in 1998. U.S. District Judge Catherine Perry reiterated the Supreme Courtís firm conclusion that a crËche is ìan unambiguously Christian symbol.î Then, looking at the context of Florissantís entire display, she concluded: ìThe erection of the crËche at the main entrance of the Civic Center impermissibly sent a message to the reasonable observer that the Christian religion was relevant to the City of Florissant and thus to an individualís standing in the political community.î Following that decision, we engaged in outspoken advocacy against a number of municipalities, convincing five to remove nativity scenes from government property. And when the City of St. Ann erected a manger scene again after agreeing not to, we took St. Ann to court in December 1998, and the City was forced to remove the display. In August, the U.S. Court of Appeals reversed the District Courtís ruling in the Florissant case. The case was poised to go to the U.S. Supreme Court.

Last month, the ACLU/EMís legal committee voted not to file a petition for certiorari to the Supreme Court, voted to drop the case against St. Ann, and voted for a moratorium on nativity scene litigation, at least this year. What happened?

At first blush, it would seem like keeping on these cases is the right thing to do. To be sure, the legal standard is in need of clarification. The test is whether a reasonable observer would view the display in its context as sending a message of endorsement of religion by the government. If a reasonable viewer of the display would conclude that it sends approval or support of religion, then it violates the constitution under the endorsement test. The problem is that the court has found that in some cases, a religious display might not necessarily send a message of religious endorsement.

It all started in 1984, when the Supreme Court ruled that a crËche in Pawtucket, Rhode Island had a secular purpose because it was part of a winter wonderland that included secular displays. Then in 1989, the Supreme Court said that a crËche on the steps of the Allegheny County Courthouse was impermissible, but that a menorah in front of a nearby government building was OK because it was accompanied by a Christmas tree and a sign saluting liberty. And ever since, the court has promulgated a case-by-case test that seems at times to have no rhyme or reason.

In the Florissant case, Judge Perry concluded that Florissantís display was more like the crËche in the Allegheny case. But the Appeals court said it was more like the menorah. This trend of ambiguity has continued across the nation and in the High Court, which has upheld some (but not all) holiday displays that include religious symbols as long as they include some secular symbols like Santa and reindeer.

And this past year in ACLU of New Jersey v. Schundler, a case closely watched nationwide, the Third Circuit Court of Appeals ruled that Jersey City ìsecularizedî its manger scene by adding figures of Frosty the Snowman and Santa Claus. Civil libertarians had been optimistic after an earlier panel of the 3rd Circuit expressed skepticism that the additions could diminish the religious impact of the display. But the case was remanded and taken up again, with the final decision being in line with the Courtís ìwinter wonderlandî ruling, finding that enough Santas can dispel the religious message of a crËche.

The frustration is maddening. The current rule has become a fruitless exercise in counting candy canes. As U.S. Circuit Court Judge Richard Nygaard aptly noted in his dissenting opinion in Schundler: ìIf government should happen to cross the line and convey an unconstitutional message, it needs merely to add one or two more secular figures and try again.î 

So, civil libertarians, the million-dollar question is: How many candy canes does it take to remove the religious meaning from a crËche? It sounds like the start of a bad joke, but in fact itís no laughing matter ñ itís the pivotal question plaguing municipalities, their lawyers and ACLU affiliates nationwide. And itís the kind of calculations that courts are conducting to determine whether a government-sponsored religious display violates the constitutional separation of church and state. So why donít we stop the madness and ask the Supreme Court to clarify the matter?

The ACLU of New Jersey didnít take the Schundler case to the Supreme Court for many of the same reasons that our affiliateís legal panel voted not to go forward. The test is bad, but the Court really has nowhere to go. It is unlikely that the Court will accept this case to announce a stricter position that any religious display is constitutionally infirm. Religious-right activists would like to see the Court accept the case and adopt a ìcoercionî test over the current ìendorsementî test ñ under which the government violates the Establishment Clause only if it actively coerces people to adopt a religious viewpoint. The Court is unlikely to go to this extreme either. So, it is left in the middle counting candy canes. If the Court accepted the Florissant case, it would simply decide whether our courts counted the candy canes correctly, and given the precedent, we would probably loose.

It was for similar reasons that the Legal Committee voted to dismiss the St. Ann case, and not pursue new litigation in this area ñ at least for the time being. The trend in the courts is to be more permissive of religious symbols, and there seems to be diminished appreciation of the gravity of Establishment Clause violation caused by a manger scene in front of City Hall. However, the same test that determines the validity of the manger scene also dictates the boundaries of government participation in religion in other areas, such as school vouchers. Court decisions further eroding the separation of church and state in nativity scene cases will have a broad impact on future Establishment Clause litigation in many areas.

Does this mean that we concede to government sponsored religious displays? No, it just means that we find other ways of addressing the problem. We must remain vigilant about the separation of church and state this holiday season through discussion and advocacy about the importance of the issue. Let elected officials in your community know that you do not approve of your tax dollars being used to fund religious icons. This Christmas, letís urge municipalities to keep the Nativity Scenes on private property and send the message that all people are insiders in their communities. This is just as essential for the protection of religion as it is for the separation of church and state. In the words of James Madison, who authored the first Amendment: ìReligion flourishes in greater purity without, than with, the aid of Government.î

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