Posted by GET NJ on December 01, 2005 at 21:26:41:

Playing reindeer games
US News & World Report
Dec 28, 1998
by John Leo

If this is December, we know for sure that the American Civil Liberties Union is running around snatching Nativity scenes and menorahs from public squares, and in response, some believers are busy arguing that their most sacred symbols are actually secular in some sense and therefore should be allowed.

Various backpedaling Christians have argued, sometimes successfully, that the cross of Jesus is not really a religious image but merely a traditional cemetery adornment or a historical marker indicating Spanish settlement in America. The Supreme Court famously promoted this effort to secularize Christian symbols with its "plastic reindeer rule" in the Pawtucket, R.I., case of 1984. A city-owned Nativity scene on private property was allowed because images of Santa Claus, reindeer, a clown, a teddy bear, and an elephant somehow detoxified the Christian content of the creche.

Justice Harry Blackmun applied this line of argument in a two-part Pittsburgh case in which the court disallowed a solo creche in a courthouse (no Rudolph, Frosty, or elves) and allowed a menorah that had been placed next to a Christmas tree outside a city-county building.

Blackmun wrote that when you place a menorah next to a Christmas tree on public property, the religious content fades and the menorah becomes secular enough to pass the establishment-clause test. "A majority of the court now instructs Jews on the percentage of religious content in their symbols," columnist Nat Hentoff wrote. Even worse, the court seemed to be suggesting that a decorated spruce tree could act something like a cross in a vampire movie, draining away dangerous spiritual power.

In the Pawtucket and Pittsburgh cases, the court unwittingly demonstrated how peculiar it is to allow religion in the public square only if it can demonstrate its own secularity. Justice Sandra Day O'Connor made things worse by inventing a new constitutional test from the rising culture of feelings, sensitivity, and self-esteem: Does the religious display make nonadherents feel like outsiders in their own community?

No censor. Justice Anthony Kennedy, writing for the minority in the Pittsburgh case, seemed aghast at the spreading mess the court was making of this issue. The court, he wrote, should stop being a national censor and simply let creches, menorahs, and other religious symbols bloom inside and outside public buildings, as long as government is not seen as coercing or proselytizing onlookers.

A case involving Jersey City, N.J. (ACLU v. Schundler), may one day allow the court to extricate itself from reindeer-mindedness and do what Justice Kennedy so sensibly suggested. When the ACLU sued over the city's creche and menorah, the city tried the conventional reindeer strategy, adding some trivial secular symbols. A federal court approved the display, but an appeals court reversed the decision, saying the reindeer strategy was not enough to desanctify religious symbols. The city appealed last summer, arguing that the decision ignored the menorah ruling in Pittsburgh. No decision yet.

What makes the Jersey City case distinctive is its multicultural argument. The city's display includes a sign saying that the creche and menorah are part of a broad policy acknowledging diversity. The city has immigrants from everywhere; a foreign language is spoken in 41 percent of its homes. The city annually commemorates Ramadan and important Hindu and Jewish holy days as well as Christmas, Hanuka, and Kwanzaa.

Mayor Bret Schundler argues that residents have a right to live in a city that does not actively discriminate against religion in its celebrations of the community's cultural diversity throughout the year.

The city's diversity carries no weight judicially, but it may function as a political counterweight to the traditional ACLU belief system--that the establishment clause must be read as a mandate to cleanse the public square of religion. That belief system is based mostly on the notion that religion is divisive and toxic, something that lawyers and enlightened judges must work to protect the people from.

The ACLU belief system, which comes close to being a secular religion, has been dominant in the courts for 40 years, though its support among the populace has always been minimal. It's probably just a matter of time before the American people rebel against the long effort to suppress religion in the public square. "Everything else gets expressed on public property--why not religion?" says Kevin Hasson, president of the Becket Fund for Religious Liberty, which defends Jersey City and other cities, free of charge, against ACLU-type creche-and-menorah suits.

Religious displays that make government look like the civil arm of muscular Christianity are rightly challenged and mostly gone. But what's wrong with a city acting to reflect civil society by acknowledging, neutrally and equally, the religious and other cultural heritages of its people? Eventually, the Supreme Court has to forget the reindeer and give a coherent answer to this question. Jersey City may be forcing the issue.

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Comments:
: Playing reindeer games
: US News & World Report
: Dec 28, 1998 
: by John Leo 

: If this is December, we know for sure that the American Civil Liberties Union is running around snatching Nativity scenes and menorahs from public squares, and in response, some believers are busy arguing that their most sacred symbols are actually secular in some sense and therefore should be allowed. 

: Various backpedaling Christians have argued, sometimes successfully, that the cross of Jesus is not really a religious image but merely a traditional cemetery adornment or a historical marker indicating Spanish settlement in America. The Supreme Court famously promoted this effort to secularize Christian symbols with its "plastic reindeer rule" in the Pawtucket, R.I., case of 1984. A city-owned Nativity scene on private property was allowed because images of Santa Claus, reindeer, a clown, a teddy bear, and an elephant somehow detoxified the Christian content of the creche.

: Justice Harry Blackmun applied this line of argument in a two-part Pittsburgh case in which the court disallowed a solo creche in a courthouse (no Rudolph, Frosty, or elves) and allowed a menorah that had been placed next to a Christmas tree outside a city-county building.

: Blackmun wrote that when you place a menorah next to a Christmas tree on public property, the religious content fades and the menorah becomes secular enough to pass the establishment-clause test. "A majority of the court now instructs Jews on the percentage of religious content in their symbols," columnist Nat Hentoff wrote. Even worse, the court seemed to be suggesting that a decorated spruce tree could act something like a cross in a vampire movie, draining away dangerous spiritual power.

: In the Pawtucket and Pittsburgh cases, the court unwittingly demonstrated how peculiar it is to allow religion in the public square only if it can demonstrate its own secularity. Justice Sandra Day O'Connor made things worse by inventing a new constitutional test from the rising culture of feelings, sensitivity, and self-esteem: Does the religious display make nonadherents feel like outsiders in their own community?

: No censor. Justice Anthony Kennedy, writing for the minority in the Pittsburgh case, seemed aghast at the spreading mess the court was making of this issue. The court, he wrote, should stop being a national censor and simply let creches, menorahs, and other religious symbols bloom inside and outside public buildings, as long as government is not seen as coercing or proselytizing onlookers.

: A case involving Jersey City, N.J. (ACLU v. Schundler), may one day allow the court to extricate itself from reindeer-mindedness and do what Justice Kennedy so sensibly suggested. When the ACLU sued over the city's creche and menorah, the city tried the conventional reindeer strategy, adding some trivial secular symbols. A federal court approved the display, but an appeals court reversed the decision, saying the reindeer strategy was not enough to desanctify religious symbols. The city appealed last summer, arguing that the decision ignored the menorah ruling in Pittsburgh. No decision yet.

: What makes the Jersey City case distinctive is its multicultural argument. The city's display includes a sign saying that the creche and menorah are part of a broad policy acknowledging diversity. The city has immigrants from everywhere; a foreign language is spoken in 41 percent of its homes. The city annually commemorates Ramadan and important Hindu and Jewish holy days as well as Christmas, Hanuka, and Kwanzaa.

: Mayor Bret Schundler argues that residents have a right to live in a city that does not actively discriminate against religion in its celebrations of the community's cultural diversity throughout the year.

: The city's diversity carries no weight judicially, but it may function as a political counterweight to the traditional ACLU belief system--that the establishment clause must be read as a mandate to cleanse the public square of religion. That belief system is based mostly on the notion that religion is divisive and toxic, something that lawyers and enlightened judges must work to protect the people from.

: The ACLU belief system, which comes close to being a secular religion, has been dominant in the courts for 40 years, though its support among the populace has always been minimal. It's probably just a matter of time before the American people rebel against the long effort to suppress religion in the public square. "Everything else gets expressed on public property--why not religion?" says Kevin Hasson, president of the Becket Fund for Religious Liberty, which defends Jersey City and other cities, free of charge, against ACLU-type creche-and-menorah suits.

: Religious displays that make government look like the civil arm of muscular Christianity are rightly challenged and mostly gone. But what's wrong with a city acting to reflect civil society by acknowledging, neutrally and equally, the religious and other cultural heritages of its people? Eventually, the Supreme Court has to forget the reindeer and give a coherent answer to this question. Jersey City may be forcing the issue. 


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