Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in USA Today on December 25, 2018.
This time of year, public officials utter a collective groan as the steady stream of complaints about Christmas-themed events and displays spread their usual holiday mischief. In recent years, cities have been slapped with legal letters for displays of the nativity, like in Dover, Ravenna and Streetsboro, Ohio, and in Rehoboth Beach, Delaware. A recent letter claimed that it was because the nativity would “confer endorsement and preference for one religion over others,” and thus violate the Establishment Clause of the U.S. Constitution.
Officials have in most cases moved the Christmas displays in response to the letters, though they would have probably preferred to respond with coal.
While the Supreme Court has protected “traditional practices that recognize the role religion plays in our society,” it has not explicitly said under what circumstances the public display of religious symbols will be protected. When confronted with these issues, lower courts are left to fend for themselves in the morass of confusing Establishment Clause cases.Thankfully, the Supreme Court may soon provide some clarity.
The Court is currently considering a request by the City of Pensacola to take up a case about a World War II-era cross in the city’s Bayview Park. Put up in 1941 by a civic group to celebrate Easter, the Bayview Cross has been used for many community-building events and celebrations. Until a 2016 lawsuit, the cross stood unchallenged for over 70 years. Now that a lower court has determined the cross must come down, the city is seeking a ruling that such crosses do not violate the Establishment Clause.
The Supreme Court has already agreed to review a ruling against another cross located in Bladensburg, Maryland. The Bladensburg WWI Veterans Memorial Cross was put up in 1925 after a joint effort between a committee of Gold Star Mothers and the American Legion to commemorate service members from the area who died during the First World War. After activists sued, a lower court decided that the memorial violated the Establishment Clause because it is in the shape of a cross.
Removals are caused by constitutional illiteracy
What exactly do these crosses have to do with attacks on Christmas displays or activities? Well, both have been threatened with removal from public property pursuant to the often-misunderstood “separation of church and state” — the more common description of the Establishment Clause. Based on a flawed understanding of the clause, faint-hearted politicians or secular legal groups prevent the three wise men, baby Jesus in the manger, and the likes of “Silent Night” from ever making their way onto public property.
A decision in favor of the Bladensburg Memorial could mean public officials would feel more empowered to recognize the reason for the season in the public square. The Supreme Court could provide even more clarity by ruling in favor of the Bayview Cross, too.
After all, the religious inspiration behind the Bladensburg Memorial and Bayview Cross is just one aspect of such displays. The Supreme Court has also considered other factors in determining whether a monument passes muster under the Establishment Clause, like the length for which a display has remained unchallenged, such as in Van Orden v. Perry (2005), and historical practice and understanding, such as in Town of Greece v. Galloway (2014).
Officials fail to defend our history and culture
To find a display or memorial unconstitutional for its religious inspiration alone shortchanges a community’s history and culture. It also neglects the important role of religion in our public life. The three wise men, the nativity, and “Silent Night” reflect the culture, the community, and the importance of religion in the public square. The Constitution does not demand their removal.
Sadly, even when officials disagree with the complaints — as in Dover, Ohio — they often acquiesce in fear of tight budgets and high legal fees and move the displays to private property. Mayoral candidates in Pensacola have publicly stated their willingness to acquiesce in the Bayview Cross case as well. And in Newaygo, Michigan, public protest convinced officials to keep a three wise men display on a school building, but officials are still discussing how to “enhance” the display to satisfy the activist legal group that wants it gone.
It’s unclear whether the Supreme Court will agree to hear the Bayview Cross case with the Bladensburg Memorial case already on its docket. Regardless, we hope the court will use this opportunity to clearly establish that governments don’t have to shy away from celebrating the most wonderful time of the year.