Creche Time

The photo is of a new "hipster" creche that can be obtained for the low price of over $100. This is germane. For years, one thing I did this time of year is to read (and now listen to) various holiday display related cases, again starting on Thanksgiving.  It is realized that holiday displays are not the biggest problem out there.  But, they do provide a useful case study and raise some important concerns.  Thus, another go around.

It is somewhat interesting that someone who was more conservative regarding many (but not all -- e.g., he went along silently regarding banning a Ten Commandments display in a classroom and briefly noted agreement in a creationist science ruling)  religion cases had an insight that someone more separatist like myself shared on some level:

The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion.

Justice White was the sole dissenter (interesting given Justice Stevens' sentiments overall, including going further than other Court liberals to not deem certain accommodations required on free exercise grounds) in a case turning on "the question whether a state university, which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion." And, though I'm not sure about that case, think the principle at the minimum could apply when dealing with elementary schools and the like in various cases. White was no longer on the Court when one of the questions he proposed came the opposite way he appears to deem required.  OTOH, as he sometimes did, perhaps he would have accepted precedent on the point.

The Supreme Court, however, did not agree -- various cases involving such questions treated "religious speech" as basically the same as other sorts of speech.  As Justice White notes, however, state authorized prayers and other matters show that there very well can be separate issues arising out of the Establishment Clause here.  Or, Free Exercise, for that matter.  And, such arises with holiday displays, even an early one eventually disposed of 4-4 [the basic question came once more, though only Justice Stevens fully accepted the stance of the district court judge here] involving a freestanding creche on a public forum along with other types of displays.  Let's look at that earlier case.

As is often the case, the district court has a certain charm by spelling out the factual details, which go back decades before the ultimate mid-1980s Supreme Court conclusion. In fact, it was something of a non-conclusion because there was a debate over the reach of the appellate opinion that was not settled by an evenly divided Court simply affirming the lower court. Something, with laughter, Justice White noted would not occur (that is, the Supreme Court simply saying "we affirm" without saying why).  A 2014 op-ed, ah the wonders of the Internet, provides an update of sorts.  The creche continues to be on public land, with a disclaimer saying it is not an official governmental display. Rather, a prime area of public land, here the "center of Scarsdale's business district," having some specialty of place. If not quite outside a courthouse or similar place specifically governmental.

In the 1970s, the inclusion of a freestanding creche an area of public land in the suburban village of Scarsdale, NY no longer seemed non-controversial.  The board of trustees, by divided vote, eventually decided not to allow it. The bottom line concern was the division it had caused, but the district court probably was right to note that it was a religious division. 1950s cases blocked the government from favoring certain religious groups in such a situation.  A more recent case (see above) generally disallowed singling out religious worship itself in respect to a state university. But, none of those cases dealt with a general rule blocking all religious displays that were freestanding, that is, without someone there who clearly was connected to them. Was a rule regarding freestanding displays and/or religious displays of that type different?  Was there still an illegitimate content based rule in place here, even if general time/place/manner rules are acceptable? Was there a compelling state interest involved?

The compelling interest necessary seemed to be to avoid establishment concerns.  The village in front of the Supreme Court spent much of the time suggesting controversial speech generally could be kept out of the village square here (only Stevens seemed game) but the focus of the lower courts was the Establishment Clause. The later case, in the 1990s, referenced above did ultimately clearly hold that a content based limit was illegitimate on free speech grounds while five votes basically (in various opinions) could be patched together to require some sort of disclaimer to deal with the establishment problems. And, as the court of appeals assumed here, it also held a neutral general policy of no freestanding displays was okay. Just not necessary.

Because when a symbol is implanted on public land that land uniquely becomes the message bearer, and because, concomitantly, there are no persons present to whom the receiver of the religious message can attribute the speech, the possibility that those receiving the message will assume it is supported by the state is particularly present.

The district court recognized a creche was a religious symbol, but held the village set up a public forum open to all types of speech here, so there was a secular purpose involved. Singling out religious displays itself would have First Amendment problems.  Citing the "Lemon test," it also held there wasn't enough "entanglement" to be problematic.  It was easier here than in other cases because the government itself didn't put out the display. The dissent in Lynch v. Donnelly, the display case that was decided by the Supreme Court as this case developed, can be cited for the other side.  OTOH, the district court ultimate decision was in part motivated to avoid "entanglement" of the courts involving secular purpose (e.g., what was necessary to make it not too sectarian or exactly the sort of signage necessary to avoid assumption of governmental endorsement).

The district court did hold the creche "advanced religion" because freestanding symbols could via the reasonable observer (to cite a test that arose later) be understood to be endorsed by the government.  Merely saying the symbol was privately owned and taken care of didn't remove that.  The "public" nature of the land to the judge seemed to be the major reason why the parties wanted the creche there. Finally, it would be different if the person or group was there with the display. As Justice White noted in the other case, in my opinion this was a valid enough Establishment Clause concern to at least give local government the discretion to ban freestanding religious displays.  So, no bans of religious events or speakers in parks etc. if non-religious ones are around. A freestanding display has a more "public" character, while being around an extended period of time (such as a month), not a one shot event.  Again, at least give localities the discretion.

I say this though it seems that Justice White was with the four who upheld the appeals court that overturned the district court judge, in part since by then Lynch [unless one of the dissenters there switched -- seems dubious though guess maybe Blackmun did] was decided.  The difference between the two cases was that in that one the locality actually supported the display, but if that's okay, the Scarsdale case would seem to be an easier one.  This left the village to basically rely on the speech angle, though a sort of "government speech" argument as such wasn't the point.  It was that the locality was trying to avoid controversy.  The point was never really settled at that time. The understanding that court of appeals ruling required them to continue the creche (any attempt not to do so was content based, so the argument went, given they only stopped because a religious display was involved) was one of the two questions taken.  But, a 4-4 result ended that.

The Supreme Court did earlier decide (5-4) that a creche was not inappropriate even when the government itself sponsored it.  A case a few years later clarified things to make sure that one specific religion was not unduly involved.  Then, it clearly held that the government could not single out religious displays in open forum, but as to the Ten Commandments, could not specifically have the purpose to favor religion in sponsoring them.  This all involved closely divided opinions, so there is some lack of clarity on what exactly would be done today though a permanent cross on a City Hall (to cite something Justice Kennedy used) probably is too much. On the other hand, even there, a cross display to honor veterans seems okay.

It seems appropriate to me to allow government to have holiday displays, even if some sort of religious aspect is present. It's hard to completely remove that sort of thing, especially when for some even a "Christmas" tree would taint the whole thing.  Nonetheless, it seems good policy to avoid strongly religious displays, especially when one specific religion dominates.  A large creche, menorah and so forth is problematic. A truly diverse display with various religious symbols in the mix seems different than many of these cases where rather large displays were involved that often with only one or two religions (maybe a creche, menorah and some "secular" stuff that might still in effect favor Christmas but in a less religious fashion) dominating.  There a myriad of religious holidays in the year; it's telling that so many of these cases deal with one season of the year.*

I again would give local governments discretion here without it being deemed illegitimate content based discrimination. I'm sympathetic with Justice Stevens' argument: "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property."  This is so even if it is not completely required.

The creche in Scarsdale was particularly a concern because of the large Jewish population of the area.  There were various places to put a creche, even if  "some of the properties were not centrally located, some had topographical problems, and some already had creches." The First Amendment is aptly honored by being particularly careful to avoid unnecessary commingling of church and state, especially if would lead to political disputes. True enough, either way, we would have issues. So, there are no easy answers here.  Discretion when necessary seems appropriate, providing different fits for different situations.

The various opinions helpfully address various sides of the question.

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[This might be covered, but after helping to put up my family's private display, a few more comments on two cases in particular.]

* Lynch v. Donnelly rests on a creche surrounded by various other Christmas related symbols (Santa Claus and the like) was a legitimate recognition of the holiday season, but it's notable one specific holiday is involved. O'Connor's "endorsement" test is telling too since repeatedly Jews did feel like "outsiders" by heavy recognition -- including plays in public schools with a Nativity component -- of Christian holidays.  Some Christians themselves have opposed the government getting involved and/or the specific way the government express religious content.  This at least helps to suggest why some are concerned about this matter, especially if specific religious symbols and events are involved.

The later County of Allegheny case -- though it is unclear how much of this is still good law since Kennedy is now the swing justice -- took into consideration this concern up to a point.  A creche with a "Glory to God" message in a courthouse displayed for a month and a half was deemed too sectarian and connected to the government.  OTOH, though three justices cried foul, a sort of diversity display (menorah, tree, spirit of liberty banner) was allowed.  Scalia of all people flagged a problem in oral argument -- what religions should be involved here if such displays are seen as necessary to be inclusive exercises?  And, as others noted, some religions don't like to be associated with each other.  In fact, the menorah display split the Jewish community, some supporting it, some not. Government favoritism in religious disputes is a special concern, realizing there is no answer everyone will accept.

Finally, the concern all of this is anti-religious not only assumes the more separatist policy disrespects religion (underlining a sort of talking past each other), but ignores the line drawing allows free exercise too.  People can reference religion in speeches, their personal beliefs are accommodated in various ways  and some totally absolute rule is not present.  There is still something special about government speech here, especially when it selectively honors certain religious content, even if in the end it is allowed in such and such a case.  Some respectful balancing should be done.

Capitol Square Review and Advisory Bd. v. Pinette stopped the government from singling out unintended religious displays. Five justices, though this might not be good law any more, did flag possible endorsement concerns. Nonetheless, by separating the displays (or not allowing them at all) with a disclaimer, endorsement concerns were handled. Thus, the different parts of the First Amendment could be balanced. Religious speech should not always be treated just like all other speech, something some justices do too much in my opinion. Two of the five didn't think the disclaimer was enough, Justice Stevens most strongly arguing so. I think the government should have discretion to follow his lead and my inclination is to agree with him on the constitutional question overall.  But, I'm in the minority.

Four justices were generally not concerned that private displays in a public forum would be assumed to be government sponsorship, especially since the government could label the displays as private.  Thus, it was more of a pure free speech issue. It is hard for me to believe though, especially if there was a couple crosses and a menorah, some reasonable people in the community would not think the government endorses them. And, in a small way, certain religions would be advanced because they in particular would tend to be favored among the displays. And, there is a concern that religion should be separate from government in general here. At times, the government (as seen in legislative prayer and Ten Commandment cases) will itself more blatantly put a thumb on the scales, but even if they don't, it enabling de facto favoritism can be a problem too. 

Changing membership makes the exact rules here unclear, but Justice Kennedy later referenced reasonable observers and so forth.  So, it seems still good law for now (and good policy) that some concern about appearances of religious endorsement and favoritism should be in place.  The net result might be debatable, as seen by the cross involved in that very case (see different opinions), but the concern still is there. Okay. Enough.