Under the U.S. Supreme Court: 'Ho, ho, ho, who wouldn't go' -- to court and sue?

Published: Dec. 26, 2010 at 3:30 AM
By MICHAEL KIRKLAND

WASHINGTON, Dec. 26 (UPI) -- Why do liberal judges and U.S. Supreme Court justices hate Christmas so much?

Like the Evil Entities in what seems an endless stream of animated holiday TV specials, why do they try to "keep Christmas from coming?" Why do they keep acting like the "Grinch" in black robes?

On the other hand, why are conservative judges and justices trying to create a Christian Shariah to rule the United States? Why do they like to use tax money, which comes from all U.S. taxpayers, to support Christian fundamentalism?

The answer to both sets of questions, of course, is that they don't.

Liberal jurists try to preserve the integrity of the First Amendment, pointing to the idea of separation of church and state on which the country was founded, as opposed to the governments of Europe tied to their state religions.

When government promotes religion, particularly a specific kind of religion, liberals say, it destroys religious freedom.

For their part, conservative jurists often point out that the Constitution was never designed to remove religion from all aspects of public life. When the courts target religion automatically, without regard for custom or tradition, they abandon common sense and increase contempt for the law.

A visit to the U.S. Supreme Court during this time of the year certainly doesn't reinforce the notion of justice as antipathetic to Christmas.

The holiday came and went this weekend, but the Great Hall of the Supreme Court is still filled with the smell of evergreens, and the court's giant Christmas tree still dominates the huge space. If you want a Christmas tree ornament for next year that sparkles in good taste with the court's seal, it's not too late; try the Supreme Court gift shop on the ground floor.

Next door, in the courtroom, there's the air of a church in the middle of the week, empty now but filled with polished pews, heavy red drapes and the absence of sound. The frieze that runs along the top of the courtroom contains continuous bas-reliefs of the "The Lawgivers," including Mohammed, to the dismay of Muslims, and Moses, holding the tablets of the Ten Commandments like Charlton Heston.

Above the justices' bench, in the center above where the chief justice normally sits, is the depiction of two tablets with the Roman numerals I to X. A court press officer will tell you blandly the depiction represents the Bill of Rights, the first 10 amendments to the Constitution -- not the Ten Commandments.

Beyond the physical building, a look at court precedent shows a measured approach to the questions of church and state.

Still surviving, though a little bit wobbly on its three legs, is the "Lemon test" developed in 1971's Lemon vs. Kurzman (though Justice Antonin Scalia keeps wishing it dead and gone to hell).

In Lemon a mostly unanimous court -- there were a number of concurring opinions -- handed down an opinion from which the Lemon test and its three prongs have been distilled. Government action regarding religion is constitutional if:

-- the action has a "secular purpose,"

-- it neither inhibits nor advances religion and

-- it avoids "excessive entanglement" with religion.

In 1984's Lynch vs. Donnelly, the justices showed by a 5-4 vote how they would apply the test.

Each year, the city of Pawtucket, R.I., erected a Christmas display in a park owned by a non-profit organization but located in the heart of the city's shopping district.

The display included such objects as a Santa Claus house, a Christmas tree and a banner that read "Seasons Greetings." It also included a Nativity scene that had been part of the annual display for more than 40 years.

Challengers including the American Civil Liberties Union filed suit in U.S. District Court saying the city's Nativity scene violated the First Amendment's ban on advancing religion. A federal judge and a federal appeals court agreed and told the city the Nativity scene would have to go.

But a narrow Supreme Court majority reversed.

"Notwithstanding the religious significance of the creche, Pawtucket has not violated the Establishment Clause" -- banning the establishment of religion -- the majority said in reversing the lower court. "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. 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."

The majority said based on the record "the city has a secular purpose for including the creche in its Christmas display and has not impermissibly advanced religion or created an excessive entanglement between religion and government."

The result was somewhat different in 1989's County of Allegheny vs. ACLU.

In that case, a Nativity scene donated by the Holy Name Society was placed on the Grand Staircase of the Allegheny County Courthouse in Pittsburgh. On the crest of its manger was an angel with a banner proclaiming "Gloria in Excelsis Deo."

Also included in the case was an 18-foot Hanukkah menorah placed just outside the City-County Building next to the city's 45-foot Christmas tree.

Eventually, an appeals court ruled the Nativity scene and the menorah violated the First Amendment as an impermissible governmental endorsement of Christianity and Judaism under Lemon test.

Again, the Supreme Court ruling was all over the map, with justices joining parts of the judgment and dissenting to others in a number of opinions.

The end result -- the menorah could stay, but the Nativity scene would have to go.

Writing in the prevailing opinion, Justice Harry Blackmun said: "When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. 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."

On the other hand, the menorah's "combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and (Hanukkah) are part of the same winter holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the pre-eminent secular symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsement."

Holiday symbol disputes can be particularly frustrating when the Supreme Court declines to review a case.

Bill Donohue, president of the New York-based Catholic League, is still jazzed over a case initiated by the league several years ago, Skoros vs. New York City.

The city Department of Education had a policy on holiday displays which permitted the Jewish menorah and the Muslim star and crescent in the schools. Though it permitted any number of secular Christmas symbols and figures -- Santa Claus, for example -- it didn't permit the display of Nativity scenes.

When protesting 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, but stressed it was not saying creches could not be displayed.

"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 (Hanukkah) is represented by the menorah and Ramadan by the star and crescent."

The appeals court in Skoros was using in part a doctrine that cropped up in the Lynch and Allegheny cases -- "the plastic reindeer rule."

The "rule" or "test" was articulated -- and blasted -- in December 1999 by Charles Haynes, First Amendment Center senior scholar. The center is a free speech advocacy group with offices at Vanderbilt University in Nashville.

"In a convoluted series of rulings," Haynes wrote, "the Supreme Court has declared that while the state can't put up a free-standing creche, it can erect holiday displays that include religious images as long as they are mixed in with lots of other 'seasonal' messages.

"Translation: Surround the baby Jesus with Santa, reindeer and flashing lights and presto, you get a secular creche (and a constitutional display)," Haynes said. "Lawyers have dubbed this the 'plastic reindeer test.'"

Haynes provided examples where the baby Jesus in city displays was dwarfed and made insignificant by giant secular symbols.

"What is the lesson in all of this? Efforts to promote a kind of civil religion -- a peculiar mix of Santas, creches, trees and menorahs -- have proved to be self-defeating," he said. "Religion does best when it is free and independent of governmental interference and entanglement. Government protects this freedom; religious communities keep the faith."

http://www.upi.com/Top_News/US/2010/12/ ... 293352200/