Suing the jingle bells off everyone this side of the North Pole has traditionally been the ACLU's favorite form of seasonal joy. Christmases past have seen the group take on religious...
Suing the jingle bells off everyone this side of the North Pole has traditionally been the ACLU’s favorite form of seasonal joy. Christmases past have seen the group take on religious displays in public squares and public schools, litigating crèches out of one town and menorahs out of another.
The civil-liberties group hasn’t lost its passion for secularism, but this year’s litigation news is being made by a different group of plaintiffs. Religious families are the ones suing — to get their Christmas back. And they’re winning: This week, a kid named Jonathan Morgan in Plano, Texas, prevailed over his local school district in a lawsuit defending his right to hand out to his classmates candy canes with a Christian message. Hallelujah.
Jonathan’s case was handled pro bono by a couple of conservative legal groups, and has lately won the attention of the Justice Department. His victory is being seen as a key development in the crèche wars because it correctly draws a line between religious endorsement by government (e.g., a teacher preaching the Gospels) and personal religious expression in a public place.
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Many schools have undergone sensitivity makeovers in recent years, excising religious hymns from school songbooks (New Jersey) or mandating Hanukkah decorations (Florida). But often, in the name of inclusiveness, kids are prevented from any religious expression altogether. In a way, you can’t blame schools amid so much legal confusion. When in doubt, just emulate France.
But that’s not what the Founders intended or what Americans have a right to expect. Absolutists have warped the intended protection of freedom of religion to freedom from religion. As with most extremist and slippery-slope arguments, they’ve provoked exactly the kind of reaction they claim to fear. Whetting the growing political consciousness of the Christian right were these ACLU-provoked fights over prayer in schools, the Ten Commandments and crèches in the town square.
According to an ACLU legal bulletin, Supreme Court doctrine on the Establishment Clause “forbids not only state practices that ‘aid one religion … or prefer one religion over another,’ but also those practices that ‘aid all religions’ and thus endorse or prefer religion over nonreligion.”
That dubious reading has found some support in the wilder reaches of the federal court system. The Left Coast’s 9th Circuit Court of Appeals, for instance, last year tried to ban the words “under God” from the Pledge of Allegiance.
But the problem isn’t just with ACLU’s oddball principles but its selective and agenda-oriented enforcement regime. When the University of North Carolina made the Koran required reading a few years ago, the ACLU issued not a peep. New York City has carved a narrow path by allowing menorahs and crescents but not manger scenes.
Now the Supreme Court is getting ready to hear two cases on public posting of the Ten Commandments. Last year, it let stand an appeals court ruling barring Alabama Judge Roy Moore from displaying the Ten Commandments. This year, it has agreed to hear another case, Van Orden v. Perry. Thomas Van Orden, a Texas homeless man, is suing to remove a Ten Commandments display from the state Capitol, where it serves (as similar displays do in the U.S. Capitol and even the Supreme Court’s own building) as an emblem of the birth of law itself.
Here, as elsewhere, the issue is context. Since the 1970s, jurisprudence has focused on what Justice O’Connor called the “objective observer” test. Would a reasonable human being consider a display tantamount to a government endorsement of religion?
Unfortunately, reasonable people are not easy to come by on this issue. Many towns litter their crèches with all sorts of religious and non-religious tchotchkes as talismans to ward off litigation. Baby Jesus is believed “safe” as long as he’s surrounded by Frosty, Rudolph and Hanukkah Harry. One California Christian organization, in response, has been urging its followers to boycott stores that tell their customers “Season’s Greetings” instead of “Merry Christmas.”
This silliness, unreason and growing religious distrust is the natural product of the ACLU’s extremist view of religious expression. Let’s also put forward an educated suspicion that outrageous and over-the-top complaints against public crèches and monuments to the Ten Commandments are designed to generate news coverage, polarize the public and help the group rake in donations from its support base.
Presumably there’s a serious rethinking going on in Democratic and Hollywood circles after last month’s presidential election. Let’s hope the ACLU’s donors and underwriters ask themselves if sticking a thumb in the eye of mainstream Americans over religious symbolism is really the way to advance the more serious civil-liberties causes the group still occasionally represents.
Collin Levey’s column appears Fridays on editorial pages of The Times. E-mail her at firstname.lastname@example.org