At the First Things site, I have an essay (“Crèche Clash“) on the continuing Christmas Wars in France. The Conseil d’Etat, France’s highest administrative court, recently ruled on the legality of the Nativity scenes that many French municipalities display every December. Although it didn’t cite any American cases, the French court relied on the same test American courts have developed to determine the constitutionality of Christmas displays in this country, the so-called endorsement test:
The Conseil begins by stating that laïcité forbids “any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.” A Christmas crèche poses a difficult case. Although a crèche can convey a religious message, it also has a non-religious meaning as a familiar seasonal decoration. One message is forbidden for the state, the other acceptable. Display of a crèche by a public authority is therefore legal, the Conseil declares, “only” where the crèche “has a cultural, artistic or festive purpose, but not if it expresses” recognition of or preference for a religion. To determine the meaning of a display, one must consider the particular circumstances, “including the existence or the absence of local traditions and the location of the display.”
Readers familiar with the American case law will recognize this as a version of the “endorsement test” our own courts use to evaluate the constitutionality of public nativity scenes. Under the test, first proposed by Supreme Court Justice Sandra O’Connor in a 1984 case from Pawtucket, Rhode Island, a display violates the Establishment Clause if it amounts to an official endorsement of religion, that is, if it suggests that the government approves a particular religious message (or disapproves such a message, though that issue does not regularly arise). Official endorsements make non-adherents feel like second-class citizens, the reasoning goes—like less than full participants in the political community. As a consequence, such endorsements violate the Constitution.
In the essay, I argue that the French version of the endorsement test turns out to be just as confusing as the American, with many of the same deficiencies–including its tendency to outlaw traditional features of public life. You can read the essay here.