Freedom of Religion – Part 1

Church Law and Tax 1989-11-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1989-11-01 Recent Developments

Freedom of Religion

Can nativity scenes be displayed on government property during the Christmas season? The United States Supreme Court attempted to clarify this issue in an important decision. For a number of years, a county government permitted a Roman Catholic group to display a nativity creche on the main staircase of the county courthouse during the Christmas season. The creche included figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, wise men, and an angel bearing a banner proclaiming “Gloria in Excelsis Deo” (glory to God in the highest). The creche bore a plaque stating “this display donated by the Holy Name Society.” The creche was surrounded by poinsettia plants, but otherwise no other seasonal figures or ornaments were located nearby. A municipal building located a few blocks away presented an annual holiday display each December on a public sidewalk outside the main entrance to the building. The display included a large (45-foot) Christmas tree decorated with lights and ornaments, an 18-foot Chanukah menorah (a candleholder with eight branches) owned by a Jewish group, and a sign reading “during this holiday season the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and out legacy of freedom.” The American Civil Liberties Union (ACLU) filed a lawsuit claiming that these displays violated the constitutional ban on any “establishment of religion.” A trial court permitted the displays, but a federal appeals court prohibited them. The United States Supreme Court agreed to hear the case, and ruled that the nativity creche had to be removed but that the Chanukah menorah was permissible. The Court observed that among other things, the constitutional prohibition of any establishment of religion prevented any governmental “endorsement” of religion. The constitution, noted the Court, “precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Whether or not a particular display violates the constitution depends upon its context. The Court affirmed one of its earlier decisions upholding the validity of a Christmas creche that was part of a larger seasonal display that included a Santa Claus, reindeer, a talking wishing well, trees, and lights. Here, however, “the creche stands alone—it is the single element of the display.” This, combined with the fact that the creche was located inside the main entrance of the “seat of county government,” sent an “unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche’s religious message.” The Court concluded: “The government may acknowledge Christmas as a cultural phenomenon, but under the first amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus …. [G]overnment may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” On the other hand, the Court upheld the validity of the Chanukah menorah, since (1) the menorah, being a mere candleholder, was not an “exclusively religious” symbol but rather “has both religious and secular dimensions”; and (2) the menorah stood next to a Christmas tree and a sign saluting liberty and accordingly was part of a “larger display” that detracted from the menorah’s religious message. Justice Kennedy, in dissent, criticized the Court’s majority for harboring a “latent hostility” and “callous indifference” toward religion. The Court’s majority found such a view “as offensive as it is absurd,” adding that “there may be some would-be theocrats who wish that their religion were an established creed … but this claim gets no relief, for it contradicts the fundamental premise of the establishment clause itself.” County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086 (1989).

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