Wednesday, December 27, 2006

If it's December, it must be time for religious controversy …

   Indulge me in a little Scrooge-ism this holiday season.  I write today to complain about the practice and law concerning religious symbols during the so-called "holiday season."

    I am spending the season in Takoma Park, Md., where, in year's past, a large evergreen outside the city hall and library has been decorated with lights in December.  The federal courts have struggled, of course, with the question whether the display of religiously related symbols on public land constitutes a violation of the First Amendment's proscription against the "establishment" of religion.  In the much-derided Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court developed what many call the "plastic reindeer" rule -- a Christian nativity crèche was permitted because it was surrounded by non-biblical items, thus somehow secularizing the image.  The more purely religious the display, however, the more likely it is that a court will find it unlawful.  (Click here for a summary of the law.)

Menorah   In Takoma Park this year, the conifer holds no Christmas/holiday lights.  Near the tree, however, stands a three-foot Hanukkah menorah, which was still standing yesterday (three days after Hanukkah ended).  Because it is not surrounded by secular "holiday" items, isn't this display of a religious symbol a violation of the First Amendment?  Does it matter whether the government placed it there or merely permitted a private person or group to install it?  Should the constitutional answer depend on the reasonable perception of someone (say, a local Hindu or Muslim) about the government's purpose?  What if the government had hung a banner stating "We celebrate religious heritage"?

   These are difficult questions.  I suggest that, as a matter of good policy, government should err on the side of staying out of mixing with religion, even if a particular act might not violate the confused First Amendment precedent.  The United States arguably has been the most successful nation in the history of the world in allowing diverse religions to worship freely (and this is, arguably, our greatest achievement as a nation).  We have done this largely by keeping government away from religion, and allowing the "free market" of religion to flourish.   Displays of Christmas trees, crèches, menorahs, and other symbols are common at religious institutions, businesses, and private homes.  Why not have the government simply stay out of the practice of placing them on public land?   

http://lawprofessors.typepad.com/land_use/2006/12/if_its_december.html

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