Thursday, December 14, 2006

Christmas, Wingless Angels, and Fair Housing Laws

I know law profs are supposed to deny that there is a "war on Christmas," so let's just call this a little skirmish over Christmas. Liberty Counsel just put out a press release that tells the following story:

Senior Housing Facility Orders Wings Cut from Angel on Christmas Tree
Housing Facility Faces Possible Lawsuit for Religious Discrimination

Orlando, FL – Seniors living in an Orlando area retirement home are facing blatant religious discrimination because of censorship of Christmas in their homes. Liberty Counsel is intervening to defend the religious freedom of residents.

The management at an Orlando area retirement home, Orlando Cloisters, issued a directive to strip the common areas of any religious symbols or words in Christmas displays. At the management’s direction, an employee at Orlando Cloisters cut the wings off the angel on the Christmas tree. Angels were also removed from a display by the elevator. The management issued a directive to the residents explaining that “Christmas trees, Santa Claus, wreaths, Hanukah Menorahs and ‘Seasons Greetings’ are all acceptable, as these items are not considered religious symbols.” Menorahs are indeed, religious symbols.

The Federal Fair Housing Act protects people against discrimination in housing, including religious discrimination. The retirement homes cannot legally censor out the Christian aspects of the Christmas holiday.

Anita Staver, President of Liberty Counsel, commented, “I am astounded that the management would show disregard for the residents’ religious beliefs by cutting the wings off an angel on their Christmas tree! The management of Orlando Cloisters has sent a clear message that Christians are not welcome. I have great compassion for the elderly and cannot stand to see any of them deprived of the joy of Christmas.”

Staver continued: “We will call upon the federal government to issue Christmas guidelines designed to prevent religious discrimination that often occurs in senior living facilities. If Christmas is censored from these precious ones, we all lose a piece of our religious freedom.”

I must admit I don't know about the application of the Fair Housing Act in private retirement homes. For example, if residents are allowed to decorate common areas with secular holiday decorations and even Menorahs, but not with angels, it sure looks like religious discrimination and viewpoint discrimination of religious expression. But does this kind of religious discrimination violate the Fair Housing Act? I don't know.

However, if Liberty Counsel's facts are accurate, this seems like a very Scrooge-like (if not "war" like) move on the part of the home's management.


Just a brief personal comment on issues like this. I believe that in a religiously pluralistic society such as ours (and such as would be typical in a retirement home in Orlando), the best way to handle holiday decorations/celebrations is pluralistically. As much as we make fun of the Supreme Court's "just add a few plastic elves & reindeer" test for Christmas displays on government land, it is a reasonable compromise when a retirement home (or a department store) decides how to celebrate the holidays. The best way to include everyone is to include everyone. The retirement home should welcome residents who wish to share wreaths, elves, Santas, Kwanza decorations, Menorahs, angels (with wings unclipped), and even a baby Jesus. Department stores should wish us Happy Hannakah, Merry Christmas, Jolly Kwanza and Happy Holidays! When someone asks me about the war on Christmas in department stores, I reply: "I do my generic 'holiday' shopping at stores that wish me a Happy Holiday, and I do my Christmas shopping at stores that wish me a Merry Christmas."

As far as government displays are concerned, I agree with Ben that government should not endorse a particular religion, but I think there is nothing wrong with government recognizing, by means of a holiday display, that part of the community is celebrating a religious holiday. The average person just doesn't understand why it is okay for a public school to celebrate "gay pride" month, but not Christmas. Nothing in the text or history of the Establishment Clause supplies an answer to this question. Best wishes to you all.

Rick Duncan

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As Rick knows, I'm a bit of a doubter about the war on Christmas. I'm also not a big fan of religious endorsements of any kind being made by government entities. But I'm also not a big fan of restricting religious expression in the private sphere, and the conduct described in the release seems misguided and heavy-handed.

Like Rick, I'm not sure that the conduct violates the FHA. 42 USC 3604(b) prohibits discrimination "in the provision of services or facilities in connection" with the rental of a dwelling. Maybe it would fit there?

Posted by: Ben Barros | Dec 14, 2006 2:55:37 PM

A quick comment just to note that I wholeheartedly share Rick's view that a pluralistic approach is the way to go here.

Posted by: Ben Barros | Dec 15, 2006 11:11:27 AM

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