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CM Townsend
Citizen
Username: Cm_townsend
Post Number: 102
Registered: 2-2005
| | Posted on Friday, December 30, 2005 - 8:45 am: |     |
I. The First Amendment to the United States Constitution Protects the Right of Citizens, Civic Groups, and Churches to Erect Religious Displays in Public Fora.
The Constitution protects the right of private citizens to engage in religious speech in a “public forum.” In a leading First Amendment case, the Supreme Court held that a private group could erect a cross in a public park during the holiday season. Pinette, 515 U.S. at 760. The Court noted:
Respondents’ religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a First Amendment orphan, is 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. (internal citations omitted). Key factors in the Court’s decision were: 1) the public park in question had historically been open to the public for a variety of expressive activities; 2) the group erecting the cross had requested permission through the same application process and on the same terms required of other private groups; and 3) the group planned to accompany the cross with a sign disclaiming any government sponsorship or endorsement. Id. at 763; id. at 782 (O’Connor, J., concurring); id. at 784 (Souter, J., concurring).
Before Pinette, the Supreme Court decided two other cases specifically addressing the constitutionality of holiday displays: County of Allegheny v. ACLU, 492 U.S. 573 (1989), and Lynch v. Donnelly, 465 U.S. 668 (1984). Lynch and County of Allegheny involved holiday displays erected by the government itself either on private property or on government property that was not a public forum. These two cases establish that religious displays on government property that is not a public forum may nevertheless be constitutional if they are accompanied by other secular symbols relating to the holiday. For example, the holiday display upheld in Lynch contained a crèche as well as a Santa Claus house, reindeer, candy canes, a Christmas tree, carolers, and toys. 465 U.S. at 671. The display upheld in County of Allegheny contained a menorah and a Christmas tree. 492 U.S. at 582.
Thus, Pinette, Lynch, and County of Allegheny teach that private citizens may erect religious displays on public property if:
1) the property is a public forum on which the government has permitted a wide variety of expressive conduct, and there is a sign informing the public that the display is sponsored by private citizens and the government is not endorsing its message; or
2) the display is accompanied by a variety of secular holiday symbols such that the overall message of the display is not exclusively or primarily religious.
The Ten Commandments cases decided by the Supreme Court in June 2005 reaffirmed that holiday displays similar to the one in Lynch are constitutional. In Van Orden v. Perry, 125 S. Ct. 2854 (2005), the Court upheld a display of monuments and historical markers near the Texas State Capitol which included the Ten Commandments. The Van Orden plurality discussed Lynch at several points and reiterated the Lynch Court’s statement that “[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Id. at 2861 (Rehnquist, C.J., plurality) (quoting Lynch, 465 U.S. at 674); see also id. at 2863. Justice Breyer’s concurring opinion emphasized that the context of a Ten Commandments display largely determines whether it is constitutional, and Justice Souter’s dissent compared the Ten Commandments display to the holiday display that the Court struck down in County of Allegheny and noted that the display in Lynch had a more secular context. Id. at 2869-70 (Breyer, J., concurring); id. at 2893-97 (Souter, J., dissenting).
In McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722 (2005), the Court declared a courthouse display of historical documents which included the Ten Commandments unconstitutional. The Court analyzed the purpose, context, and history of the display, noting that it began as the Ten Commandments standing alone. Id. at 2734-38. The Court distinguished its holiday display cases by stating, “Crèches placed with holiday symbols . . . do not insistently call for religious action on the part of citizens; the history of posting the Commandments expressed a purpose to urge citizens to act in prescribed ways as a personal response to divine authority.” Id. at 2743, n.24. Justice Scalia’s dissent argued that “[t]he acknowledgment of the contribution that religion in general, and the Ten Commandments in particular, have made to our Nation’s legal and governmental heritage . . . seems to be on par with the inclusion of a crèche or a menorah in a ‘Holiday’ display that incorporates other secular symbols.” Id. at 2759 (Scalia, J., dissenting). He argued that Lynch and Marsh v. Chambers, 463 U.S. 783 (1983), “ought to decide this case.” Id. at 2760.
Most lower federal courts have upheld the rights of private citizens and governments to erect holiday displays. What follows is a summary of the decisions from various federal courts of appeals and district courts around the country. Even in the absence of a case from your jurisdiction, it is imperative to understand that the Supreme Court’s decisions in Lynch, County of Allegheny, and Pinette are binding upon the courts in every state.
C. Court of Appeals for the Third Circuit – governing Pennsylvania, New Jersey, and Delaware
The Third Circuit, in ACLU v. Schundler, 168 F.3d 92 (1999), upheld the constitutionality of a city holiday display depicting, inter alia, a crèche, menorah, Christmas trees, Santa Claus, Frosty the snowman, a sled, Kwanza candles, and two signs celebrating the cultural and ethnic heritage of the city’s residents. The city owned, maintained, and stored the items in the display, which was located in front of city hall. Using Lynch and County of Allegheny for the basic legal principles involved, the court lamented the conundrum of discerning what type of display passes constitutional muster. The court asked: Within what distance must each display element be from another element? What effect does the size of each element have on the constitutionality of the overall approach? “How many candy canes offset one Jesus?” The court upheld the display because it was similar in many respects to the display upheld in County of Allegheny.
AMERICAN CENTER FOR
LAW AND JUSTICE WEBSITE |
susan1014
Supporter
Username: Susan1014
Post Number: 1224
Registered: 3-2002
| | Posted on Friday, December 30, 2005 - 8:56 am: | |
Do you have a multiple posting disorder?
I think any of us who are interested saw this on the other thread. |
cmontyburns
Citizen
Username: Cmontyburns
Post Number: 1634
Registered: 12-2003
| | Posted on Friday, December 30, 2005 - 11:19 am: | |
And as I noted in the other thread, the American Center for Law and Justice was founded by Pat Robertson. A paragon of morality.
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