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When a religious identity causes the minority to live as strangers in their own land

Guest blog by Rabbi Ron Fish

We the People. 

The opening words of our Constitution evoke a kind of civic faith in the fundamental condition for our liberty. We have the right to make our own laws, to govern and control our own lives and destiny. No sovereign or king can decide for us. Because ‘We’ are free.  

But what does such freedom mean when one community is excluded from ‘We the people?’ When a religious identity causes the minority to live as strangers in their own land?

From the earliest moments of the American experiment, the small Jewish community in the U.S. asked these questions. We were inspired by the promise of freedom and inclusion. We were buoyed by the idea that this would be a nation where all people are equal. But we wondered: Did the society invoked in the preamble have room for us? Or was the Framers’ use of the first-person plural ‘We’ a very specific invocation of an idea that was all too familiar to Jews through millennia? 

We had been invited to join in commerce and community in kingdom after kingdom. We lived side by side with our neighbors for generations.  And then, when the majority soured on our presence, citing some conspiracy or fear, we were suddenly perceived as the source of pollution in the land. We were attacked for causing heresy or disease, economic disaster, or disloyalty. We were seen as the great underlying cause for the failure of a king or army, of a national idea or faith. It did not matter how long we had lived in a land. After years of brutality and violence, nations began to expel Jews from lands that they had lived in for centuries. Often the kings and bishops tried to avoid outright removal. The Jews, after all, had become indispensable. Even so, in the end, Jews were seen as inherently foreign. When ‘the people’ rose up and made the lines of identity clear, Jews were always left outside. 

Majorities can rule by subjugating the minority. In fact, the American system made room for slavery, for genocide and white supremacy because the unlimited power of the majority was seen as freedom itself.

But built into the American system since the first Congress was a dream for a society in which all peoples could aspire to be fully included in ‘We the People.’ The Bill of Rights begins with the most transformative claim. Democracy is not only an expression of majority rule. It is also built on an infrastructure of minority rights. Freedom includes the central claim that, here, all people belong. 

While the First Amendment seemed to guarantee religious freedom, in the first decades of the Republic, it did not. Many states had religious tests for statewide office holders. And almost all states required some belief in basic Christian ideas in order to serve in government. This was understood to be permitted under the Constitution since the Bill of Rights had only precluded Congress from limiting religious liberty or establishing a national church. Each State was free to act according to the will of its majority. Yet, President Washington’s letter to the Jewish community of Newport, RI, in 1790 was a prophetic view of a still unrealized future. The United States, he promised, would “give to bigotry, no sanction, to persecution no assistance.” The Jews would be at home here. Quoting the Hebrew Bible, Washington saw an America where all belonged, “each man under his own vine and fig tree. 

The expanding promise of the First Amendment drew millions of Jewish immigrants to these shores. As our nation has grown more diverse, the Jewish community here has thrived beyond the dreams of any diaspora community in history. But this story of success and progress is not guaranteed. The chants of “blood and soil“ and “Jews will not replace us” in Charlottesville, Virginia, came from a deeply rooted vein in American culture. Some people still cling to the idea that democracy is consistent with exclusion, racism, and antisemitism. They continue to define “We the people” in specific ethnic and religious terms. Without apology, their version of the American people must be white and Christian. 

And the struggle extends from the fevered chants to the courts themselves. While no one is seeking legal approval to persecute religious minorities, in recent years, the Supreme Court has undermined religious freedom by permitting Christian prayer at government meetings and by public school football coaches on the playing field by allowing the government to display giant religious symbols, like a 40-foot Latin cross in Bladensburg, Maryland, and by siding with those who have used Christianity not simply as a shield for faith, but as a sword to discriminate against others, including people of minority faiths or no faith. 

When the prohibition on the state establishing religion is set aside, even for the benefit of some people of faith, it is a danger to everyone, especially Jews and other people of minority faiths or no faith. 

Anti-Defamation League (ADL) has been fighting against the defamation of the Jewish people and for just and fair treatment for all for more than a century. We will continue to lift up Washington’s vision of the inclusive America which has been the greatest gift of the Bill of Rights. In order for the democracy we believe in to thrive, everyone must have an equitable place in a diverse and truly free America. 

A place where we all belong. 

Rabbi Ron Fish is the Eastern Division Director of Antisemitism Education and Advocacy at ADL. He has served congregations in the northeast for 25 years, most recently he was Senior Rabbi at Temple Israel in Sharon, MA. He currently serves on the Executive Committee of the Massachusetts Board of Rabbis. 

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Perspectives on Holiday Displays and the First Amendment

‘Tis the season for First Amendment controversy. Every year it seems there is some form of public debate around religious holiday displays and how the First Amendment does or doesn’t protect them. You may have heard or even wondered about “the war on Christmas” and “why we can’t say ‘Merry Christmas’ anymore.”

The First Amendment guarantees the right to religious expression, protecting your right to pray, preach, worship, and celebrate your religion publicly or privately. Only when the government becomes entangled in a religious celebration are constitutional rights violated. So we asked three attorneys to clear the air by sharing their perspectives as well as a bit of history on the First Amendment and holiday displays. Read their articles below.

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Seasonal Displays: Religion and Reindeer

Guest blog by Herbert G. Grey

As the calendar turns over to December, when 97% of Americans celebrate Christmas in some manner, questions invariably arise about the propriety of seasonal displays in public spaces. Many focus on and celebrate the religious significance of Christmas. The thoughts of most turn to “the holidays.” Still others with a “separation of church and state” mindset prefer to sanitize public places from any vestige of religious expression, despite the religious origins of many “holidays.” The variety of these perspectives reveals why we have a First Amendment in the first place. First Amendment law upholding the propriety of seasonal displays on and around government property is fairly well-established. Whether people cherish Christmas or relish the sights and sounds of “the season,” they will find the United States Supreme Court is not a grinch. Those who favor a more strict-separationist, secular perspective under the Establishment Clause can find solace in knowing that seasonal religious expression generally must be accompanied by secular elements or have some underlying historical background or tradition.

The U.S. Steel Creche, December 29, 2006. CC BY-SA 2.5

A LITTLE LEGAL & HISTORICAL BACKGROUND

Protection of Religious Speech. The Supreme Court has consistently said, “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” In a later Ten Commandments monument case, the Supreme Court affirmed that there is “no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

Text, History, and Tradition. It is no secret that religious expression has long been a feature of government proceedings and expression in public spaces. In Church of the Holy Trinity v. United States (1892), the Supreme Court recited dozens of historical examples of religious influence on American government. Most people are familiar with images of crosses at Arlington National Cemetery, cross-shaped war memorials, and Ten Commandment monuments in public places, most of which have been upheld. McCreary County v. ACLU (2005) disallowed a Ten Commandment monument because it had solely a religious purpose in being placed where it was on public property.

 “Legislative” prayers to open official proceedings at all levels of government have also been approved as “part of the fabric of our society.” More recently, in Town of Greece v. Galloway (2014), the Supreme Court upheld prayers to open city council meetings based on “tradition” as long as it “does not coerce participation by nonadherents.”

Whose Speech is It? The starting point is to consider whether seasonal displays are private speech or government speech. Since the First Amendment regulates only government restrictions on free exercise of religion or free speech, there is generally no problem with any federal, state, or local government allowing private expression in public places on the same basis as other private speech. At the same time, the Establishment Clause prohibits the federal government (and later state and local governments through the Fourteenth Amendment) from sponsoring or approving one religion- or lack of religion- over another. 

The Lemon Test. When the Establishment Clause may come into play, so does the infamous “Lemon test.” Lemon v. Kurtzman (1971) required proof of government action having a secular purpose, a primary effect that “neither advances nor inhibits religion” and not fostering “an excessive government entanglement with religion” to avoid Establishment Clause problems. The Lemon test has been the subject of criticism in the Supreme Court and elsewhere for some time, but it was recently put in the grave for good in Shurtleff v. City of Boston (2022) (the “Boston flagpole” case) and Kennedy v. Bremerton School District (2022).

HOW DOES THIS APPLY TO SEASONAL DISPLAYS?

Since most or all seasonal displays have historically been government-owned and operated, they are typically considered government speech, historically implicating government establishment of religion under the “Lemon test.”  Three cases illustrate how the law concerning seasonal displays has developed:

  1. Lynch v. Donnelly (1984) considered a government display that included a nativity scene, a Santa Claus house, reindeer, a Christmas tree, candy-cane poles, and a “Seasons Greetings” sign. Thus was born the famous “two reindeer” (or “three reindeer”) rule whereby government displays are not impermissibly advancing the Christian religion if they celebrate the “holiday season” by including other secular symbols; 
  2. County of Allegheny v. ACLU (1989) involved a long-time private nativity display owned by a private religious organization on the grand staircase in the county courthouse. The only other private expression given the same opportunity was a Jewish menorah accompanied by other secular symbols. The Supreme Court said that the nativity display violated the Establishment Clause because it featured Christian religious expression and nothing else, but the Jewish display did not violate the Establishment Clause because it included other secular symbols along with religious symbols; and
  3. Pleasant Grove v. Summum (2009) arose out of a display whereby a city government, over time, allowed multiple privately donated monuments in a public park. The City retained final authority over the displays and had the right to reject others because the existing displays were varied, some were of long-standing origin, and together the displays had religious, historical, and secular components. 
CONCLUSION

In an era when diverse views often divide, seasonal displays with religious content represent the essence of the First Amendment as it was intended, an enduring example of bringing people together in some semblance of unity and shared experience for everyone while acknowledging our differences. 


About the author

Herbert G. Grey is a lawyer in private practice in Beaverton, Oregon, with over 25 years of experience concerning First Amendment and religious liberty matters. He was admitted to the Oregon State Bar in 1981 and is also admitted to practice before the U.S. District Court for Oregon, the Ninth Circuit Court of Appeals and the United States Supreme Court. He is a member of the Board of Directors of Christian Legal Society and serves as chairperson of the committee overseeing CLS’ Center for Law & Religious Freedom.

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Santa is Welcome, but Be Careful About Religious Displays

Guest blog by Donald Scarinci

Santa Claus can always come to town during the holidays, but the religious symbols accompanying the holiday season are not always welcome. In most cases, the First Amendment does not play Scrooge to festive decorations. However, like many constitutional issues, court decisions have made the law a bit murky. 

While Christmas trees, colored lights, reindeer, and snowmen will always get the green light, there is no clear answer regarding religious displays, such as nativities and menorahs, on public property. However, based on existing precedent, a holiday display featuring symbols from different religions and secular symbols of the holidays is likely constitutional. 

Christmas display at the Osborne Family Spectacle of Dancing Lights at Disney’s Hollywood Studios, Orlando, Florida. 2015. Chad Sparkes.

The Establishment Clause

The First Amendment’s Establishment Clause governs most constitutional issues involving holiday displays. The Establishment Clause provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

It is a common misconception that the Constitution requires a wall of separation between church and state. As the U.S. Supreme Court explains, the Establishment Clause does not “require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” 

In short, this means that municipalities and other public agencies can’t erect holiday displays favoring one religious sect over another or conveying an endorsement of religion altogether. However, government entities are allowed to incorporate religious symbols into holiday displays.

The National Menorah near the White House in Washington, D.C. Photo by Tim Brown

The Incorporation of Religion into Holiday Displays

The constitutionality of government-erected holiday displays depends on the circumstances, such as the display’s context and content. Some will pass muster, while others will not. 

Courts have acknowledged that while Christmas trees have their roots in Christianity, they are now largely considered secular. As explained by the Supreme Court, “Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas…Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city’s tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith.”

As for decorations with clear ties to religion, such as a menorah or crèche, the Supreme Court has developed a few legal tests. For example, in Lynch v. Donnelly, 465 U.S. 668, 686 (1984), the Supreme Court upheld the constitutionality of a nativity display on government property because it was a part of a larger holiday display that included various secular symbols.

As the Court explained: 

It would be ironic . . . if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. 

The Supreme Court’s subsequent decision in Allegheny v. ACLU, 492 U.S. 573 (1989), demonstrates how much context matters, as it reached separate conclusions on two challenged holiday displays. First, the Court ruled that a crèche inside a Pennsylvania courthouse, which also featured the words “Glory to God for the birth of Jesus Christ,” had the “unconstitutional effect of conveying a government endorsement of Christianity.” 

In reaching its decision, the Court relied on the “endorsement” test advocated by Justice Sandra Day O’Connor in her concurrence in Lynch, under which government endorsement or disapproval of religion is unconstitutional. “No viewer could reasonably think that it occupies this location without the support and approval of the government,” the Court wrote. “Thus, by permitting the ‘display of the crèche in this particular setting,’ the county sends an unmistakable message that supports and promotes the Christian praise to God that is the creche’s religious message.” 

However, the Court further held that not all religious displays run afoul of the Establishment Clause, emphasizing that each display must be evaluated as a whole. For example, with regard to a second display featuring a menorah, the justices held that the addition of Christmas trees and other secular holiday decorations rendered it constitutional. According to the Court, the “city’s overall display must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.” 

Lower courts have reached similar conclusions. In ACLU v. Schundler168 F.3d 92 (3d Cir. 1999), the Third Circuit Court of Appeals considered the constitutionality of two Jersey City holiday displays. The first, which featured a menorah and a Christmas tree, was forbidden. A modified display, however, did pass muster. It contained not only a crèche, a menorah, and a Christmas tree but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents’ cultural and ethnic diversity. According to the Third Circuit, the modified display was “indistinguishable in any constitutionally significant respect” from the displays upheld by the Supreme Court in Lynch and Allegheny.

Key Takeaway

Not surprisingly, questions about the constitutionality of holiday displays arise every year. Complaints from the public (and the occasional lawsuit) are also not uncommon. While the Supreme Court has not established a bright-line rule, its decisions confirm that displays that exclusively or prominently display religious symbols will likely run afoul of the First Amendment. On the other hand, an eclectic mix of holiday favorites like reindeer and Christmas trees, along with religious items, is generally a winning combination of holiday cheer. 


About the author

Donald Scarinci is the Founding Partner of Scarinci Hollenbeck. He writes and lectures extensively about Constitutional Law and edits the award-winning, The Constitutional Law Reporter. His practice focuses on representing public institutions and businesses that interact with government.

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The First Amendment and Christmas Displays

Guest blog by the Christian Law Association

Religious liberty is an important part of the heritage of the United States of America.

A Puritan rebuking children for picking holly during the holiday season. Hulton Archive/Getty Images

The British settlers in the thirteen original colonies remembered how the official religion of England had sometimes drastically changed after the coronation of a new monarch and how those who refused to comply with the new official church were jailed—and even martyred—for practicing their faith. As the Bill of Rights was written, lawmakers were careful to ensure that the government would not be able to force the citizens to be members of a state-controlled church, and religious liberty became part of the fabric of America.

Just as the story of America is complex and multi-faceted, Christmas, as we now know it, is a combination of many traditions. Christmas is so ancient that we will never know how its many customs were derived. For example, the Christmas tree became popular in England and America after Queen Victoria’s husband, Prince Albert, introduced the Paradise Tree to the palace— a common custom in his homeland of Germany. Other people note that evergreen trees were used in the ancient celebrations of the winter solstice. 

Illustration of Queen Victoria and Prince Albert and their children gathered around their Christmas tree.

Getty Images

During the Christmas season, Christians focus on the birth of Christ. Others downplay the birth of Christ and focus on exchanging gifts and the friendly face of Santa Claus. The combination of all these items has created unique legal questions. For example, “If Christmas is a Christian holiday, can nativity scenes be displayed in town centers, or do such displays mean the government is officially supporting one religion over another?”

Christmas at Your Home or Business

Private citizens are allowed to celebrate Christmas’s religious aspects in their homes and businesses. No laws or court cases forbid citizens from celebrating a Christ-centered Christmas at home.

In Public Forums

Religious Christmas displays are perfectly legal if a public space has been made available to everyone. For example, if a city or village decides to allow Christmas displays in the community park, Christian displays must be allowed, just as secular displays must be allowed. The government cannot include one group as it excludes another.

In the case Grace C. Osediacz v. City of Cranston (2005), the court ruled that the city of Cranston, Rhode Island, had not violated the First Amendment by allowing both secular and religious Christmas displays on government-owned land that had been opened as a public forum.

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the United States Supreme Court clearly ruled in favor of allowing religious displays in public forums.

The court held:

Respondents’ religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. (Id. At 760 [internal citations omitted]).

This case makes clear that private citizens, indeed, are allowed to erect religious displays on public property if

  1. The property is a public forum where the government has permitted a wide variety of expressive conduct
  2. And there is a disclaimer sign to inform the public that the display is sponsored by a private citizen and is not being endorsed by the government.
Christmas Displays in Government Buildings

In the case of lynch v. Donnelly, 465 U.S. 668 (1984), the United States Supreme Court ruled that religious displays may indeed be part of Christmas displays on government property. However, these Christmas displays need to include both sacred and secular elements. This case created a legal idea sometimes humorously referred to as “The Three Reindeer Rule.” If there is a Christian manger scene, there might also need to be three reindeer from Santa’s Village. If there is a statue of Baby Jesus, there might also need to be a statue of Jolly Old St. Nick.

Knowing the Law

Many citizens do not realize that the Supreme Court has held that Christmas displays—even on government property—need to include a variety of Christmas themes. Still, the religious themes of Christmas have not been expelled from the public square. In some cases, citizens may need guidance from experienced attorneys who can help them navigate the complexity of these issues. However, Christians in the United States still enjoy the freedoms of the First Amendment.

Merry Christmas!


About the author

Since 1969, the Christian Law Association (CLA) has been providing free legal assistance to Bible-believing churches and Christians who are experiencing difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition in one form or another.

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Reimagining Religious Freedom: Rights, Responsibilities, Respect

October 27, 2022 October 29, 2022

Join the all-virtual Religious Freedom Mobile Institute, October 27-29. The theme will be “Reimagining Religious Freedom: Rights, Responsibilities, Respect.”

Religious freedom is essential to democracy, and we are at a pivotal point for freedom. In light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, and the rise of both political violence and the emboldening of Christian nationalism and its various extremist elements, the Institute will look closely at the role of religion and our understanding of religious freedom in the context of a crumbling democracy and our hope for the future.

The rising threat of Christian nationalist driven political violence is central to our convening now, as is developing the resources for those who gather to quickly mobilize and take action.

This event will be bringing together an impressive group of experts on policy, organizing, law, religion, and the intersection of it all. Not only will you hear and learn from experts in the field, you also will receive the training you need to respond in your context as appropriate.

These public conversations will look at the politics of race and religious freedom by centering the experiences of marginalized communities when it comes to public education, voting rights, and environmental justice, including housing reform and security.

Save October 27-29 on your calendar now. 

Center for Faith, Justice, and Reconciliation

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Has Defending the Establishment Clause Become a Constitutional Violation?

October 6, 2022 @ 6:30 pm 8:00 pm

“Has Defending the Establishment Clause Become a Constitutional Violation?” Tom Waddell, president of the Maine Chapter of the Freedom From Religion Foundation, will discuss Maine and Religious Education during his onsite presentation at the First Amendment Museum.

His focus is on how the Supreme Court’s decision in Carson V. Makin all but requires Maine to fund Christian education. He will also explain how Maine’s bill LD1672, which requires private schools to follow public school guidelines, applies to private Christian schools.

When: Thursday, October 6, 2022

Where: First Amendment Museum, 184 State Street, Augusta, ME.

Time: 6:30 PM

With: Tom Waddell, Maine Chapter of the Freedom From Religion Foundation

Free to attend! No Tickets Required!

About Tom Waddell

Tom Waddell is the president of the Maine Chapter of the Freedom From Religion Foundation (FFRF). The Freedom From Religion Foundation is a national constitutional watchdog organization based in Madison, Wisconsin with over 35,000 members. As president of the Maine Chapter – FFRF, Tom was the first “out of the closet” Atheist to give an invocation to the Maine House and Senate since the state was established in 1820.

RSVP

    Free

    First Amendment Museum

    184 State Street
    Augusta, Maine 04330
    2075572290