Tonight, we take a look at the constitutionality of nativity scenes on public property. Before we get to that, a little background first.
Every Tea Partier knows you won’t find the words ‘separation of church and state’ in the Constitution, that the phrase comes from a letter Thomas Jefferson wrote in 1802. Supreme Court Justice Blackmun referred to Jefferson’s words while importing the notion of separation of church and state into the First Amendment on his own motion in 1947.
The establishment clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion….” What does it mean to ‘establish’ a religion? When my own state of Virginia was a colony, the legislature in 1624 set up an established church. It was mandatory for all whites to worship in the officially approved Church of England and support this Anglican Church with their tax money. In addition, all public officeholders had to be Anglican. The legislature controlled the creation of new parishes and set salaries for ministers. This is the kind of thing – theocracy, essentially - that the First Amendment establishment clause was intended to prevent.
When compared to what happened in the Virginia colony, does a nativity scene in a public park ‘establish’ a religion? Hardly. But Supreme Court logic has deemed it so. “[T]his Court has never relied on coercion alone” in interpreting the establishment clause of the First Amendment, Justice Sandra Day O’Connor wrote concurring in the result of a 1989 case. [Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. at 627-628, O’Connor, J. concurring; quoted in Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1242]
Thus, under Supreme Court precedent, government can violate the establishment clause just by favoring one religion over another, appearing to approve or disapprove of a particular religion, making members of other religions feel unwelcome, or otherwise ‘endorsing’ a religion. Under Supreme Court jurisprudence, the First Amendment in effect now reads ‘the government shall make no law constituting an endorsement of religion. The word ‘establishment’ has essentially been read out of the First Amendment.
And so we arrive at court cases prohibiting nativity scenes at county courthouses, public parks, and other public spaces. Clever people soon found a way around this by combining other symbols with Christian symbols in Christmas displays. In 1984, the Supreme Court OK’d a nativity scene in a park that included a Santa Claus house, plastic reindeer pulling Santa’s sleigh, and hundreds of colored lights along with a crèche representing the birth of Jesus. The Court concluded that the display served legitimate secular purposes, such as celebrating a holiday and depicting the origins of that holiday. Five years later, five justices voted to strike down a stand-alone nativity scene at a county courthouse while, in the same case, six justices approved a holiday display outside a city building consisting of a Christmas tree, a Jewish menorah, and a secular sign saluting liberty.
So the law is pretty clear at this point. The ‘reindeer rule’, as some have called it, is in full force and effect. Mix enough other symbols in with your crèche and your nativity scene passes constitutional muster. Leave the reindeer out, and you can’t have your nativity scene in a public space because it would ‘endorse’ the Christian religion.
Before you decide whether you like the ‘reindeer rule’ or not, let’s change the facts. Instead of a nativity scene, imagine a display - left up the entire month of Ramadan - depicting a Muslim star and crescent, a scimitar, and women in burqas, outside the city building in Hamtramck, Michigan which has elected a Muslim-majority city council. Suppose also that the display includes a black flag inscribed with Islam’s holy words “Muhammad is the messenger of God” – the ISIS battle flag, in other words. Now what do you think? Would you want this display considered constitutional if a few reindeer were sprinkled in?
In 2006, a federal appeals court approved a school display containing a Jewish menorah and Muslim star and crescent. In the court’s view, the display served a secular purpose – promoting tolerance and diversity – and did not promote the Jewish or Muslim religions.
Suppose a court were to rule that my fictional Hamtramck display – ISIS battle flag and all – was constitutional because Rudolf the red-nosed reindeer was enough to make it serve a secular purpose of promoting diversity.
My imagined display would be constitutional under the reindeer rule and, thus, under the current ‘no endorsement’ construction of the First Amendment establishment clause. It would also be constitutional under a strict reading of the establishment clause that only prohibited setting up a state religion and coercing people into it.
So what possible rule could prevent this display? Perhaps stricter separation of church and state than even Justice Blackmun imagined.
That may not be what Tea Partiers want to hear but, as noted in a previous Constitution Minute, the changing demographics of the country will give rise to new constitutional questions and the further evolution of the understanding of religious liberty in America.