Under the U.S. Supreme Court: Governors get mangers under the Christmas tree

By MICHAEL KIRKLAND  |  Nov. 28, 2010 at 3:30 AM
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WASHINGTON, Nov. 28 (UPI) -- The nation's 50 governors got an unexpected Christmas present this month -- Nativity scenes for each of them, sent by the Catholic League in New York, for display in each state capitol building.

In a letter accompanying the small creches, Catholic League President Bill Donohue said it was the group's "sincere hope that (the creche) will be displayed in the Capitol Rotunda alongside secular symbols (e.g., a Christmas tree) this coming Christmas season."

There was no constitutional problem, Donohue said, with the religious display on public property.

"We are paying for it because we believe it would be inappropriate to use public monies to pay for religious symbols," he said in the letter. "But we also believe, consistent with (U.S.) Supreme Court rulings, that there is no constitutional prohibition banning privately funded creches from being displayed alongside secular symbols."

Oh, and by the way, Donohue told the governors -- the league's monthly journal Catalyst had published the names of each of their chiefs of staff, so league members could contact them if the creche did not appear in the rotunda as requested.

Speaking from his New York office by telephone, Donohue said he wasn't trying to get into a court fight with anyone over the display of a religious symbol on public property. That's why the manger scenes were privately purchased with donations, and "we have said it's best to put it among secular symbols." Constitutionally, it's difficult for government to reject religious symbols meant for a public forum -- an area in which different symbols are already on display.

"I'm not going to get drawn in (to a court case) if someone on my side illicitly tries to display the Nativity scene" on its own, Donohue said.

But as a federal appeals court remarked in a case initiated by the Catholic League several years ago, "No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays."

As for the 50 governors who received the creche, "I've been encouraged by the response I've gotten," Donohue said. The best response has come from the Midwest, the West and the South. The worst from the Northeast.

Jeff Field, the league's communications director, said more than a dozen governors have contacted the organization saying they'll find a place for the creche. Virginia's governor has promised to put it in the executive mansion in Richmond. The ceramic manger scenes are one piece, 15 1/2 inches tall and cost about $75 apiece.

Donohue is an affable man but unafraid to mix it up with those who take shots at Catholicism or religious belief.

He's still scratching his head over the outcome of a case originated by the Catholic League in New York City several years ago.

The case, Skoros vs. New York City, started off with letters from Donohue to the city Department of Education over its policy on holiday displays. "That policy allows the menorah to be displayed as a symbol of the Jewish holiday of Chanukah (Hanukkah) and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but it does not allow a creche or Nativity scene to be displayed as a symbol of the Christian holiday of Christmas."

When letters had no effect on the policy, the league found a plaintiff with two children in public schools -- and therefore with standing -- to file suit.

A federal judge ruled for the city, saying the menorah and crescent and star were secular symbols and a federal appeals court affirmed.

"We emphasize at the outset that we do not decide on this appeal whether, consistent with the First Amendment, the (education department) could ever include a creche in a public school winter holiday display," the appeals court said. "We decide only that the (city) defendants do not violate the Constitution when, in pursuing the secular goal of promoting respect for diverse cultural traditions, they do not include a creche in such displays, representing Christmas through a variety of that holiday's well recognized secular symbols, even though Chanukah is represented by the menorah and Ramadan by the star and crescent."

After taking several looks, the U.S. Supreme Court declined to review the case.

Donohue said the case was all the more puzzling because another city agency, the parks department, gives the league permission to place a life-size manger scene in Central Park each year.

"I was extremely disappointed" over the Supreme Court rejection, Donohue said. "How can I put my creche in Central Park but not in schools. ... I would like to see some greater clarity here."

A quick glance at Supreme Court jurisprudence shows some clarity may be needed on the issue of what Thomas Jefferson called "the wall of separation" between church and state.

Lawyers and judges looking for guidance from the Supreme Court -- now composed of six Catholics and three Jews -- sometimes say they are confused by the court's precedents on recurring displays. The high court has seemed to approach the separation of church and state on a case-by-case basis instead of using some single overarching principle.

The venerable "Lemon test" -- from 1971's Lemon vs. Kurtzman -- is getting shopworn and often does not seem to be a player in the game of determining an unconstitutional government action -- especially now that its champion, Justice John Paul Stevens, has retired. The three prongs of the test determine whether government is acting constitutionally when dealing with religion. The prongs: Does a government action have a secular purpose? Does the action advance or inhibit religion? Does it result in "excessive … entanglement" with religion?

When lawyers look to Supreme Court precedent on Christmas or Hanukkah displays, they usually turn to 1984's Lynch vs. Donnelly and 1989's Allegheny County vs. ACLU.

In Lynch, a 5-4 high court majority ruled the city of Pawtucket, R.I., did not violate the First Amendment by erecting a Christmas display in the heart of its shopping district.

"The concept of a 'wall' of separation between church and state is a useful metaphor but is not an accurate description of the practical aspects of the relationship that in fact exists," Chief Justice Warren Burger wrote in the syllabus of the majority opinion. "The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the 'callous indifference' … that was never intended by the establishment clause."

In the Allegheny County case five years later, there were two recurring holiday displays in downtown Pittsburgh: a Nativity scene placed on the Grand Staircase of the Allegheny County Courthouse, donated by the Catholic Holy Name Society, with an angel carrying a banner proclaiming "Gloria in Excelsis Deo"; and an 18-foot Hanukkah menorah, a nine-prong candelabrum, placed just outside the city-county building next to a 45-foot Christmas tree. At the foot of the tree was a sign proclaiming a "salute to liberty." The menorah was owned by Chabad, a Jewish group, but was stored, erected and removed each year by the city.

The Supreme Court ruling in the case was all over the map. Justice Harry Blackmun, joined by four other justices and citing Lemon, said the Nativity scene in Pittsburgh violated the First Amendment's establishment clause.

"The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ," Blackmun wrote. "Moreover, in contrast to Lynch, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus."

Justice Anthony Kennedy, a key swing vote on the high court today, dissented: "The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of non-adherents must fail, since it contradicts the fundamental premise of the establishment clause itself."

Blackmun concluded the menorah, unlike the Christian message, did not have the prohibited effect of endorsing religion because of its "particular physical setting." The combined display with a Christmas tree and a sign saluting liberty simply recognizes that Christmas and Hanukkah are part of the same winter-holiday season, Blackmun said, which has a secular status in modern society.

The other justices agreed with and dissented to bits and pieces of Blackmun's opinion in a mosaic that gave the lower courts little to chew on.

Interestingly, a case that never reached the Supreme Court gives an indication of how one of its current members may vote in some future challenge to religious holiday displays.

ACLU vs. Schindler was decided at the appeals court level in Philadelphia in 1999. The case involved a Nativity scene, a menorah and a holiday tree owned by Jersey City, N.J. The city had been using the symbols in holiday displays for 30 years.

The appeals court, using Allegheny County, ruled against both sides. The court ruled a holiday display entirely consisting of religious symbols violates the establishment clause. But the court said if religious symbols were placed in a secular context -- the city added Santa Claus, a 4-foot-tall plastic Frosty the Snowman and a red wooden sled after losing the case at the trial level -- then the display was permissible.

Then U.S. Circuit Judge Samuel Alito authored the opinion. Alito, of course, joined the Supreme Court in the 2005 term when Justice Sandra Day O'Connor retired.

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