Should religious displays be allowed on public land?

To follow is an excerpt from the January 15, 2010 CQ Researcher report on "Government and Religion" by Thomas J. Billitteri
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Despite the Constitution's prohibition against government “establishment of religion,” most Americans don't seem bothered when crèches, menorahs and other such religious symbols appear on public property. A 2008 Rasmussen poll found that 74 percent of adults thought such displays should be allowed. [Footnote 19] The Pew Research Center has found similar popular support. [Footnote 20]

Yet, the presence of religious symbols on government property has a long and sometimes conflicted history in the courts.

In 1980 the Supreme Court ruled that a Kentucky law requiring public schools to post a copy of the Ten Commandments in all classrooms was a violation of the Establishment Clause. [Footnote 21] But in 1984, the court said it was constitutional for a Nativity scene to be displayed in a Rhode Island town square. [Footnote 22]

“Since these two decisions in the 1980s, the Supreme Court and lower federal courts have issued somewhat unpredictable rulings, approving some religious displays while ordering others to be removed,” the Pew Forum on Religion & Public Life noted in a 2007 review of religious display cases.

Added Pew, “[t]he lack of clear guidelines reflects deep divisions within the Supreme Court itself. Some justices are committed to strict church-state separation and tend to rule that any government-sponsored religious display violates the Establishment Clause. These same justices also believe that, in some circumstances, the Establishment Clause may forbid private citizens from placing religious displays on public property.” But “[o]ther members of the court read the Establishment Clause far more narrowly, arguing that it leaves ample room for religion in the public square.” Meanwhile, other justices have taken a middle path, arguing that “a religious display placed in a public space violates the Establishment Clause only when it conveys the message that the government is endorsing a religious truth.” [Footnote 23]

Some activists firmly oppose religious displays. Lynn of Americans United for Separation of Church and State, for example, argues that “a bright-line rule would make sense: If it's a government-sponsored event, icon or symbol, it should not be religious. When you put up a manger scene at Christmas and it's the government that owns it, it looks like the government is endorsing that religion,” he argues.

Hooper, the Council on American-Islamic Relations spokesman, takes a broader view, arguing that “as long as everyone has equal access” to a site, “we're not opposed to it.”

“It's really up to each religious community to make sure it has equal access,” he adds. “We've dealt with this in the past as an organization. If a local library has a Christmas display, we don't ask people to go and tell them to take down the Christmas display. We say, ‘Look, reserve it for the next time Ramadan comes along.’ It's in our court, really.”

Carey of the National Association of Evangelicals says that while the group is “not overly concerned about most of these issues,” many cases concerning religious displays “do raise constitutional issues and need to be carefully studied on their merits.

“So much depends on context,” says Carey, “There's a difference between ‘In God We Trust’ on our money or having a Nativity scene at city hall. You look at the context in the community.”

What's needed is a “common sense” approach to the issue of religious displays, Carey argues. “We don't want the government to be in the position of establishing or favoring a particular religion.” Many displays don't do much to do that, Carey says, “but if something were endorsing and furthering a particular religion, we would not be in favor of that.”

In the crèche conflict in Chambersburg, Pa., the Nativity scene had been displayed for years in the town's Memorial Square, and some residents believe that's where it should have remained. “Jesus is the reason for the season,” resident Kelly Spinner told a local media outlet. “They're taking that reminder away from us. I don't think it's fair. What's next? Santa Claus? A Christmas tree?” [Footnote 24]

The council president, Bill McLaughlin, argued that Chambersburg was “a victim of the tyranny of the minority,” adding that “the Constitution guarantees ‘freedom of religion’” but says nothing about “freedom from religion.” [Footnote 25]

But a local Jewish resident noted that council members let him put a “Seasons Greetings” sign incorporating religious symbols from a variety of backgrounds on the town square in 1996. “You really can't pick and choose what goes up there,” he said. “Once you let one group in, whether it's Christians, Jews, Muslims, then you have to let other groups in also.” [Footnote 26]

Lynn, commenting broadly on the issue of religious displays and not the Chambersburg flap, says that “if you truly say ‘this courthouse lawn is open to everybody’ — if you're really willing to do that — that I think the Constitution does permit, but I think that's a dopey idea.” In places that have opened public spaces to displays of all persuasion, he says, “you get a cluttered lawn. People trip over stuff on their way to pay their parking tickets.”

Among the most contentious religious-display issues in recent years has been the placement of religious mottoes on automobile license plates. [Footnote 27] The Indiana legislature approved state-issued plates bearing the motto “In God We Trust” in 2006, and Florida followed suit in 2008.

In November, a federal judge ruled that South Carolina couldn't issue plates showing the image of a cross in front of a stained-glass window and bearing the words “I believe.” U.S. District Judge Cameron Currie said a law approving the plates amounted to a “state endorsement not only of religion in general, but of a specific sect in particular.”

Lt. Gov. André Bauer, who had advocated the bill approving the plates, called the ruling “another attack on Christianity” and said Currie was a “liberal judge appointed by [President] Bill Clinton.” [Footnote 28]

But Currie ruled correctly in an “absolutely clear-cut” case,” said Thomas Crocker, an assistant professor at the University of South Carolina Law School. Her decision was “not out to denigrate religion, but it's out of a historical understanding that problems for both politics and religion can flow from the state's entanglement with religious practices.”
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For more information see the CQResearcher report on "Government and Religion" [subscription required] or purchase the CQ Researcher PDF.

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Footnotes:
[19] “74% Support Religious Displays on Public Property,” Rasmussen Reports, Dec. 24, 2008, www.rasmussenreports.com/public_content/lifestyle/holidays/december_2008/74_support_religious_displays_on_public_property.
[20] Ira C. Lupu, David Masci and Robert W. Tuttle, “Religious Displays and the Courts,” Pew Forum on Religion & Public Life, June 2007, http://pewforum.org/assets/files/religious-displays.pdf. According to the report, a 2005 survey by the Pew Research Center found that 83 percent of Americans said displays of Christmas symbols should be allowed on government property, and another 2005 Pew poll found that 74 percent said they believed it was proper to display the Ten Commandments in government buildings.
[21] Stone v. Graham, 449 U.S. 39.
[22] Lynch v. Donnelly, 465 U.S. 668.
[23] Lupu, et al., op. cit., pp. 2–3.
[24] “Chambersburg Council Votes to Remove Nativity Scene,” WHAG-TV, MSNBC.com, Nov. 24, 2009, http://your4state.com/content/fulltext/?cid=89441.
[25] Quoted in ibid.
[26] Ibid.
[27] In South Carolina, state law allows private groups to have license tags bearing their own message, and the CEO of a group called the Palmetto Family Council filed a request with the state motor vehicles department to have an “I Believe” plate issued. See John Monk, “‘I Believe’ tag might be resurrected,” The State, Nov. 27, 2009, www.thestate.com/154/v-mobile/story/1045682.html.
[28] John Monk, “Judge strikes down plate,” The State, Nov. 11, 2009, www.thestate.com/513/story/1022683.html.
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