Religious Diversity Deserves a Place in the Public SquareJOHN LEO
The traditional ACLU belief system—that the no-establishment clause must be read as a mandate to cleanse the public square of religion is based mostly on the notion that religion is divisive and toxic, something that lawyers and enlightened judges must work to protect the people from. This belief system has been dominant in the courts for 40 years, though its support among the populace has always been minimal.
If this is December, we know for sure that the American Civil Liberties Union is running around snatching Nativity scenes and menorahs from public squares, and in response, some believers are busy arguing that their most sacred symbols are actually secular in some sense and therefore should be allowed.
Various backpedaling Christians have argued, sometimes successfully, that the cross of Jesus is not really a religious image, but merely a traditional cemetery adornment or a historical marker indicating Spanish settlement in America. The Supreme Court famously promoted this effort to secularize Christian symbols with its plastic reindeer rule in the Pawtucket, R.I., case in 1984. A city-owned Nativity scene on private property was allowed because images of Santa Claus, reindeer, a clown, a teddy bear and an elephant somehow detoxified the Christian content of the creche.
Justice Harry Blackmun applied this line of argument in a two-part Pittsburgh case in which the court disallowed a solo creche in a courthouse (no Rudolph, Frosty or elves) and allowed a menorah that had been placed next to Christmas tree outside a city-county building. Blackmun wrote that when you place a menorah next to a Christmas tree on public property, the religious content fades and the menorah becomes secular enough to pass the Establishment Clause test. A majority of the court now instructs Jews on the percentage of religious content in their symbols, columnist Nat Hentoff wrote. Even worse, the court seemed to be suggesting that a decorated spruce tree could work something like a cross in a vampire movie, draining away dangerous spiritual power.
In the Pawtucket and Pittsburgh cases, the court unwittingly demonstrated how peculiar it is to allow religion in the public square only if it can demonstrate its own secularity. Justice Sandra Day OConnor made things worse by inventing a new constitutional test from the rising culture of feelings, sensitivity and self-esteem: Does the religious display make non-adherents feel like outsiders in their own community?
Justice Anthony Kennedy, writing for the minority in the Pittsburgh case, seemed aghast at the spreading mess the court was making of this issue. The court, he wrote, should stop being a national censor and simply let creches, menorahs and other religious symbols bloom inside and outside public buildings, as long as government is not seen as coercing or proselytizing onlookers.
A case involving Jersey City, N.J. (ACLU vs. Schundler) may one day allow the court to extricate itself from reindeer-mindedness and do what Justice Kennedy so sensibly suggested. When the ACLU sued over the citys creche and menorah, the city tried the conventional reindeer strategy, adding some trivial secular symbols. A federal court approved the display, but an appeals court reversed, saying the reindeer strategy was not enough to de-sanctify religious symbols. The city appealed last summer, arguing that the decision ignored the menorah decision in Pittsburgh. No decision yet.
What makes the Jersey City case distinctive is its multicultural argument. The citys display includes a sign saying that the creche and menorah are part of a broad policy acknowledging diversity. Forty-one percent of the citys population speak a language other than English; there are immigrants from everywhere. The city celebrates Ramadan and important Hindu and Jewish holy days as well as Christmas, Hanukkah and Kwaanza. Mayor Bret Schundler argues that residents have a right to live in a city that does not actively discriminate against religion in its celebrations of the communitys cultural diversity throughout the year.
The citys diversity carries no weight judicially, but it may function as a political counterweight to the traditional ACLU belief system that the no-establishment clause must be read as a mandate to cleanse the public square of religion. That belief system is based mostly on the notion that religion is divisive and toxic, something that lawyers and enlightened judges must work to protect the people from.
The ACLU belief system, which comes close to being a secular religion, has been dominant in the courts for 40 years, though its support among the populace has always been minimal. Its probably just a matter of time before the American people rebel against the long effort to suppress religion in the public square. Everything else gets expressed on public property why not religion? says Kevin Hasson, president of the Becket Fund, which defends Jersey City and other cities, free of charge, against ACLU-type creche-and-menorah suits.
Religious displays that make government look like the civil arm of muscular Christianity are rightly challenged and mostly gone. But whats wrong with a city acting to reflect civil society by acknowledging, neutrally and equally, the religious and other cultural heritages of its people? Eventually, the Supreme Court has to forget the reindeer and give a coherent answer to this question. Jersey City may be forcing the issue.
Leo, John. Religious Diversity Deserves a Place in the Public Square. U.S. News and World Report (Dec 20, 1999)
Reprinted by permission of John Leo and U.S. News and World Report.
John Leo writes the Outlook column for U.S. News and World Report.
© 1999 US News&World Report
Not all articles published on CERC are the objects of official Church teaching, but these are supplied to provide supplementary information.