Friday, December 29, 2006
I wrote on Wednesday about America's tradition of religious diversity and the desirability of having government stay out of religion and land use. Here's a story that may be an exception on both counts.
Houses of worship have often received preferential treatment under zoning laws. This caused little controversy when the nation was largely heterogeneous in terms of religion. As more and more Americans are not Christians or Jews, however, the siting of houses of worship is likely to result in some tension. Here's a story about local opposition to a large planned Muslim mosque complex near Katy, Texas -- including a cockeyed attempt to annoy the Muslims with a pig race on neighboring property.
On way to look at such a story is as an exception to Americans' usual tolerance of minority religions. But in an age when it is part of the nation's task on the world scene to prove the superiority of our creed of tolerance, this episode justifies some speaking out by governmental leaders. Perhaps a leading Texan in national office?
[Thanks to Prof. Anthony Schutz of the University of Nebraska for a link to this story.]
Wednesday, December 27, 2006
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.)
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?
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Stephen Miller on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Josh Galperin on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jesse Richardson on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Can UberPOOL Make Carpooling Cool?
- Are Earth Day cookies an endangered species?
- Fordham Urban Law Center's Sharing Economy | Sharing City Conference - April 24
- Land Use, Telescopes and Sacred Land in Paradise
- Tekle on Percent-for-Art Ordinances