Wednesday Writs: War on Christmas Edition

Downtown Pawtucket sign, Rhode Island Picture by Kenneth C. Zirkel via Wikimedia Commons

[WW1] It is that time of year when people are allegedly more filled with joy and happiness and charitability than the rest of the year, when families get together, pretty lights shine brightly, and we all fight about what season-specific nicety we use to greet each other. So, it seems fitting that our case of the week highlight a fight in the alleged “war against Christmas.”

Each year, the city of Pawtucket, Rhode Island erects a holiday display featuring Santa Claus and his magical reindeer, oversized red and white candy canes, a Christmas tree, and other traditional symbols of the season, such as… a clown and an elephant? Hanging above the display is a banner wishing passersby “Seasons Greetings”. And intermixed with the display is a traditional nativity scene with Mary, Joseph, the wisemen, angels, and of course, the baby Jesus in his manger. The entire display is located in a non-profit owned park in the town’s shopping district. The nativity décor was purchased in 1973 with City of Pawtucket money, and cost about $1300.

In the early 1980s, the ACLU along with some Pawtucket residents sued the city in US District Court, alleging the inclusion of the nativity in the display violated the Establishment Clause (Claus?). The District Court agreed with them, and permanently enjoined the city from including the nativity in future holiday decorating. The District Court deemed its inclusion an endorsement of religion, specifically an “appearance of official sponsorship” of Christianity in violation of the First Amendment requirement of separation of church and state.

After the First Circuit Court of Appeals sided with the ACLU et al and denied the city’s appeal, Pawtucket filed a petition before the Supreme Court, who granted cert. The opinion in our case of the week, Lynch v. Donnelly, was issued on March 5, 1984. Chief Justice Burger wrote the 5-4 majority opinion, joined by Justices White, Powell, Rehnquist and O’Connor.

Burger set forth examples of religious displays by government entities which he felt analogous to display at issue. He pointed out religious paintings on display at government-run museums and the Ten Commandments display in the very courtroom where this case was heard. While acknowledging the prohibition against government sponsored church, Burger also declines to see separation of church and state as an absolute: “Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Burger opines that no institution exists in a vacuum, and some overlap is bound to occur. He found it notable that in the same week that the 1st Congress approved the first amendment, it also approved the hiring of chaplains for both chambers.

Instead, Burger looked to the test set out in the 1971 case of Lemon v. Kurtzman. In Lemon, the Commonwealth of Pennsylvania passed a law allowing that would pay teachers in Catholic schools out of public funds, as long as they taught from publicly funded books and materials. In its decision that the law violated the Establishment Clause, the Court fashioned a test: whether or not the seemingly religious activity also had a secular purpose, does not primarily advance or restrict a particular religion, and does not “result in an excessive entanglement of government and religion.”

Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith — as an absolutist approach would dictate — the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so.

Burger went on to point out prior cases, in which the Court had struck down laws which mandated religious instruction or activities in schools, but carefully noted that similar activities, if rooted in a historical lesson or scholarly context as part of curriculum, would be permitted. Even if a disputed activity benefitted a particular religion, it would not be prohibited as long as another, secular purpose could be identified. As an example, requiring the posting of the Ten Commandments in every classroom was nothing more than a “religious admonition”, not an academic exercise, and served no secular purpose. (No argument as to any larger societal benefit arising out of the following of the commandments is addressed.)

In analyzing the nativity scene in this context, the District Court determined that its presence in the décor was nothing beyond a religious display and thus had no secular purpose and was impermissible. However, the Burger majority saw it differently. In their view, the District Court made an error by focusing on the crèche itself rather than considering the entire context of the display. Wrote Burger:

When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society, a variety of motives and purposes are implicated. The city, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.

Thus, the Court reasons that the public celebration of the Christmas Holiday is a historical observance, not a religious one. Or, at least, that the historical significance of the event offers the secular purpose needed to condone an otherwise state-sponsored expression of religious belief.  The Court further reasoned that there was no substantial benefit to the church from the inclusion of the nativity scene. In fact, activities with much clearer benefits to the church- such as public funds for books or transportation for school children to religious schools, or even Sunday closing laws, all of which had been held up by the Court in prior cases. Though this argument is unlikely to satisfy those who believe vehemently in an absolute separation of church from all things state, from a precedential value it seems obvious that a nativity scene in a public park is less beneficial to the church than these things.

As to the third prong of the test:

Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the creche. No expenditures for maintenance of the creche have been necessary; and since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. In many respects, the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries.

Justice O’Connor joined fully in the majority opinion, but also penned a separate concurrence to explain the First Amendment analysis she advocates. In O’Connor’s view, a government’s action is a violation of the Establishment Clause if that action would tend to make a person not adhering to a particular religion have less standing or stature in the community:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel’s Den, Inc., 459 U. S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Justice Brennan dissented, joined by Justices Marshall, Blackmun and Stevens. Brennan also adopted the Lemon test, but reached a different result. He recognized the narrow approach which focused on the context and entirety of the display but which did not consider, for example, a nativity scene set alone, or a cross.  Nevertheless, Brennan believed that regardless of the context or larger display, the inclusion of the crèche was unconstitutional. He pointed out that a secular display could have been accomplished without the biblical imagery.

More importantly, the nativity scene, unlike every other element of the Hodgson Park display, reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass. To be found constitutional, Pawtucket’s seasonal celebration must at least be nondenominational and not serve to promote religion. The inclusion of a distinctively religious element like the crèche, however, demonstrates that a narrower sectarian purpose lay behind the decision to include a nativity scene. That the creche retained this religious character for the people and municipal government of Pawtucket is suggested by the Mayor’s testimony at trial, in which he stated that, for him as well as others in the city, the effort to eliminate the nativity scene from Pawtucket’s Christmas celebration “is a step towards establishing another religion, non-religion that it may be.”

…

The “primary effect” of including a nativity scene in the city’s display is, as the District Court found, to place the government’s imprimatur of approval on the particular religious beliefs exemplified by the creche. Those who believe in the message of the nativity receive the unique and exclusive benefit of public recognition and approval of their views. For many, the city’s decision to include the creche as part of its extensive and costly efforts to celebrate Christmas can only mean that the prestige of the government has been conferred on the beliefs associated with the creche, thereby providing “a significant symbolic benefit to religion. . . .”

Brennan concludes that there is no way to separate the nativity from the very foundation and core of Christianity (even if it is surrounded by elephants and clowns.)

[WW2] The lawyer who told counsel for Allstate to “eat a bowl of dicks” earns the ire of a federal judge. It’s never a good sign when the least harsh thing a judge says to you is to ask “You did go to law school, right?”

[WW3] A pro se petition accepted by SCOTUS questioning the boundaries of state law jurisdiction over members of the Creek Nation Indian tribe in Oklahoma could lead to the overturning of hundreds of state-court criminal convictions.

[WW4] SCOTUS will not review a ruling by the 9th Circuit striking down an Idaho state law criminalizing the homeless for sleeping in public places.

[WW5] Meanwhile, the Court has accepted a petition by the state of Arizona to permit the retrial of a man on charges of first degree murder, despite him having already been convicted of second degree murder for the same crime. That conviction was overturned, and the state wanted a second bite at the first degree apple- which the Arizona Supreme Court ruled amounted to double jeopardy.

[WW6] A bone marrow transplant can lead to a person becoming a chimera – that is, having two sets of DNA. What are the criminal forensics and legal ramifications?

[WW7] Curtis Flowers, currently awaiting his 7th trial on the same set of murder charges– following 2 mistrials and 4 overturned verdicts, at least once for the deliberate striking of black jurors by the prosecutor- was released from prison on bond pending trial.  More background here in a prior edition of Wednesday Writs.

[WW8] Former Pakistani president and dictator Pervez Musharraf has been sentenced to death for high treason after a six year trial. Musharraf is currently in Dubai, seeking treatment for “ill health”.

[WW9] Our dumb criminal of the week: Dickface Johnson, who threatened to “beat every cop’s ass” when they responded to a disturbance at his house. Dickface, aka Florida man Jeffrey Poole, beat no asses, but he did go to jail.