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Friday, November 27, 2015

Christmas Display Litigation Season Begins

Some time back, I started to read Supreme Court cases (now lower court cases are easy to access too) regarding holiday displays and have done so here as wellTen Commandments monuments and other displays also have been a long term matter of court dispute.  These are more blatant in a fashion, especially compared to holiday displays that try to include a range of religious symbols or water down the one (creche) with wishing wells and other stuff.  This is part of a range of things that might broadly be deemed "ceremonial deism" in some fashion along with national days of prayer, "God We Trust" on currency or in court rooms and so on.

I try to keep perceptive here that there are more serious concerns among matters of religious dispute, including burdening people's access to health care or marriage licenses that are the same as those of everyone else because of the religious views of some people.  Also, we have ISIS, an international example of a group giving "religion" a bad name. And, the term is used advisedly, since this discussion is correct.  There is a link there to President Obama saying that no religion "condones the killing of innocents."  Have you checked your history, Mr. President.  If you want people not to denigrate Islam or religion for extremists who self-represent as Islam, fine.  But, let's not have Presidents try to define "Islam" or "religion,' especially not in such a naive fashion.

But, every dispute is not of grand importance, and smaller ones can touch on major issues.  Denying someone the right to read some "trashy" book is a big deal, even if it is only a matter of keeping out of the local library, the person able to get it various other ways.  It's topical anyways since Thanksgiving is addressed in cases like Lynch v. Donnelly, including the dissent separating its religious and secular components, and the plurality opinion in the next major case noting that over our history, some Thanksgiving proclamations (which Madison and Jefferson deemed a problem, but then I'm not for appealing to history as much as some originalists) were blatantly sectarian in nature.

[Talking about Thanksgiving, some point out the whole pardoning the turkey deal -- cue appropriate West Wing scene -- is moronic, and insulting really given how few people are pardoned these days. I think one can argue that the President has helped prisoners in various ways, including in respect to getting them out of prison, but the argument has bite.  Would not take it that seriously though -- there are going to be stupid rituals.  So, use them to do something productive such as addressing human prisoners. 

Another topical issue (three football games now on Thanksgiving) would be the rather lame idea that its name led to officials being tougher on the Washington Redskins.  Whatever it takes to change the damn name, I guess. Finally, there are various ways to enjoy the holiday without eating animal products. Many already don't really do the whole turkey deal and personally back in the day pre-vegetarianism, I preferred chicken. Some chicken substitutes actually are rather tasty, but no, this is not merely a matter of Tofurky. There are range of foods for thanks giving meals.]

The most important thing here is to respect religious diversity in this country, which leads to what some might think of as lame but still praiseworthy attempts to cover various bases in public schools or other public celebrations of the holiday season. The courts continue, after all, to be more sensitive when young children are involved, and various Jewish children in the past had let's say at best mixed feelings regarding school Christmas pageants and the like. Take a basic thing. Saying "Happy Holidays" is ridiculed as anti-Christian, when it really amounts to a reasonable approach to cover everyone.  Some celebrate Christmas in some fashion or don't care, but they shouldn't care either if you say "Happy Holidays." Note too the inclusive presidential proclamation for Thanksgiving as to compared to more religious ones of the past.

Thus, the most troublesome cases is where one holiday or religious symbol (like one form of the Ten Commandments) are publicly endorsed by the government or even by some major employer (if not a First Amendment issue, respecting religious liberty in other contexts still is important) is some blatant fashion.  This includes celebrating the holidays of some majority group and not even in some fashion recognizing those of other faiths.  Now, religious diversity (e.g., the whole "Judaeo-Christian" deal) can have its own issues. But, even-handedness is generally better than one-sided endorsement. Basic respect is not really a trivial thing.

Litigation can seem to be about trivial things. Thus, we have holiday displays that have a creche, which is a representation of the miraculous version of Jesus' birth. The difference in a fashion between Jesus and Jesus Christ, Christ not just being his last name. Notice, e.g., the presence of an angel in the linked example. To many, the creche might just seem a relatively bland symbol of Christmas, a holiday many (hey, me included) celebrate without believing in the whole affair.  But, public endorsement of religious symbols is touchy.  It is not too surprising minor differences led to great disputes, down to Catholic schoolchildren being hit for refusing to use Protestant Bibles.  Minor or not, this is a type of "establishment" of religion, favoring one form over another.  Shouldn't be a majority rules either.  The fact so many are Christian as compared to Jewish or Christian of the type that might actually oppose use of such symbols (there is also division among Jews regarding the menorah) shouldn't determine things.

The cases ultimately split depending on how blatant the display involved. A creche in a wider display without some special governmental connection or blatant intent to promote religion allowed, a freestanding creche in a key government location not.  This was a close call, 5-4, with four justices annoyed the creche was not allowed both times, four would have denied the creche both times and three others upset a menorah (and even a Christmas tree in a display of religious symbols) was allowed as a representation of religious diversity. And, given the changing membership of the Court, the staying power of this rule is somewhat unclear. Justice Kennedy would have allowed the creche and generally supports public displays, except for something blatant like a permanent cross on top of City Hall.  Likewise, as part of an open public forum, especially if a notice is present that no governemnt endorsement is present, a freestanding creche or cross or menorah can be left alone on public land.

I'm inclined to follow Justice Stevens' rule, which very well have at best two votes* on the current Court, that "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property." Leave religious symbols, putting aside things like museum showings and such, to private parties.  There are ways to acknowledge holidays with religious components without using symbols that many deem holy.  I realize there might be hard line drawing issues there, but as a basic rule, it seems sensible.  It is not the current federal constitutional rule, but good policy is not always a clear demand that is enforced in the federal courts.

Local areas should at least have the option of having a special rule here as applied to public fora. The only way to avoid allowing unattended symbols here would be a general ban. This might work in some cases, but in others, it would make sense to allow some unattended displays. The same applies in other contexts. A public college might want to fund all college club newspapers, but funding a religious publication is not the same thing since required funding of religion is a specific wrong religious liberty should avoid, granting some hazy lines.  Not according to current precedent. This leads to some controversy when some group pushes for equal time, the ultimate case the Supreme Court decided involving a KKK group wanting to include an unattended cross if menorah was allowed. And, perhaps some Pastarfarian or whatever group wants their symbol included when a locality sets up a holiday display with other symbols.  Again, the government generally has broad speech powers, but when religion is involved, it isn't quite the same. 

This would also counsel against freestanding displays on public land that people reasonably associate with the public in general.  A religious event in a public park can be associated with the parties involved.  A big creche, even with some disclaimer many won't see or be able to read unless they go up close, in a park reasonably might be deemed a public message.  The Establishment Clause makes religious displays a bit different than other types of expression, governmental endorsement selectively of concern.  This goes both ways -- the First Amendment specifically respects religious beliefs by protecting free exercise of religion; non-establishment also does so by equally not favoring some over others.  At least somewhat more care is warranted.

Such a clear line might not be present in various cases, but the power of symbols and the importance of holidays again warrants special care. Everyone is not likely to be happy -- I recall Nat Hentoff once being concerned about use of a Christmas tree in a public school or library some such.  It was after all a "Christmas" tree ... was there a Hanukkah bush available?  I personally think a Christmas (and the very word) tree often has a secular connotation at this point, but hey, grew up Catholic, so biased, right?  Still, cliche or platitude it might be, some common sense and basic respect for fairness and even-handedness can be useful here.  This includes public officials taking notice of the diverse celebrations around this time of year, Christmas itself but a late Christian form of longstanding end of year celebrations.

Context ultimately matters here and again recognize there are degrees. I don't think holiday displays are quite as "passive" as some make them out to be in these cases, especially when there are various degrees of governmental involvement.  And, a "passive" sign that says "In Jesus We Trust" would not be allowed.  It still is not as bad as some other things, especially when part of displays that do honor various holidays (though there is a tendency to favor some here, thus "Christmas" season brings in other holidays, holidays that might be relatively minor to the religions).  Plus, there are ways to show basic fairness.  Happy holidays!


* Justice Breyer was okay with a disclaimer, Ginsburg was concerned with the flimsy nature of the disclaimer (but joined Stevens' dissent in a later case with the rule) and Sotomayor once joined a dissent regarding a cross display.  Kagan had a good dissent in an invocation case involving a public meeting, but separated it from legislative prayers generally.  Inclined to think she would at best be a vote for endorsement concerns, not Stevens' strict rule.  She argued the cross case for the government but that isn't really determinative.  So, who knows.

BTW, the video is not exactly supportive of my p.o.v., but is a good representation of some people's ideas about the question. Concern for certain particularly religious symbols and so forth is anti-Christmas etc.

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