Around the Web

Here are some important law-and-religion news stories from around the web:

Berger on Kemalism Here and Abroad

Peter Berger has an interesting column this week, well worth reading in full, about the display of religious symbols by the government and the culture war features of legal disagreement. The legal cases he discusses are not new–the Utah public highway cross case (Davenport v. American Atheists) which the Supreme Court declined to hear and the Lautsi case. Professor Berger might have noted that in declining to hear the case, the Supreme Court left intact the Tenth Circuit’s ruling striking the crosses down as an Establishment Clause violation.

But that’s largely irrelevant, for the insights of the column lie in his comparative cultural analysis:

Why the recent flurry of church/state issues? In America it is part of the politics surrounding the so-called “culture wars”:  The rising influence of conservative Protestants in the Republican party has mobilized liberals against any political role of organized religion—especially since conservative Catholics have been allied with conservative Protestants on most of the issues “south of the navel” (issues, that is, that liberals are personally anxious about). The politics in Europe is different: Conservative Christianity (Protestant or Catholic) is not very significant politically, but the perceived threat of militant Islam has made secularism (such as French laicite) appear as a defense of European values against theocracy.

I think there is also the factor of lawyers looking for business, and then the professional deformation of this group comes into play. Lawyers live, literally and emotionally, on the making of fine distinctions. Thus the distinctions made in American courts, on where a particular instance violates or does not violate the First Amendment, are veritably scholastic (or, if you will, Talmudic). These considerations tend to be sovereignly free of common sense. . . . Am I exaggerating? Of course I am. But I do so for a reason: I am applying the old casuistic method of reductio ad absurdum. 

Let me “reduce” some more: The Kemalist assault on religion in public space is related to an old progressive notion, the abolition of history. It goes back to the Enlightenment and particularly to its political expression in the French Revolution. It was not for nothing that the latter abolished the old calendar and substituted a new one (with months like brumaire and thermidor). That particular exercise did not last long, but the underlying progressive idea persisted: By the very notion of progress, the present is further on the march toward the glorious future than anything in the past. It affected America too: see the motto about the “new order of the ages” emblazoned on the Grand Seal of the United States (and on the dollar bills in your wallet). But in this country these utopian fantasies have often been modified by common sense and by Protestant suspicions about human nature. Be this as it may, the abolition of history continues to be a dream that haunts the progressive imagination . . . .

As I write this, we are on the eve of the Christmas season (the ADL guide would surely prefer just plain “holiday season”). There is the usual orgy of shopping, the favored season for shopkeepers to be merry. Christmas carols blare through the PA systems, jolly Santa Clauses (fully evolved from their saintly ancestor, St. Nicholas) listen to the wishes of small children perched on their knees, everyone smiles with good will. This synthesis of religion and secularity is regularly criticized from opposite sides. The secularists don’t like the religious part. They can’t do much about the shopping malls, but they can surely agitate and litigate against any trace of Christianity in the holiday season insofar as it is acknowledged on government property—maybe crèches can be allowed, but without baby Jesus or any other New Testament characters. If any values are to be celebrated, they are family ties, the happiness of children and general good will. And on the other side are those who want to “bring Christ back into Christmas”, doing away with all the supposedly fake jolliness and commercial exploitation, instead restore the original religious character of this holy-day. I think that both criticisms are misguided. There is nothing fake about the secular cheer of the season, nor about the expressions of general amiability – and there is nothing wrong about the fact that some people are making money out of it. Those who want to focus on the birth of Christ the savior, are free to do so. Let me admit it: I do celebrate the birth of Christ at Christmas. I also like the secular cheer that is also celebrated. I even like the commercialism—it is a source of happiness for many people, especially children.

Sixth Circuit: County’s Denial of Permit for Creche Violates Free Speech Clause

Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median.  In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received,  the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).

“Keep Christ in Christmas” Banner Rankles FFRF

A story out of Pitman, New Jersey.  It seems that a local chapter of the Knights of Columbus has hung a banner, attached on both sides to private property but spanning a public street, stating, “Keep Christ in Christmas.”  There is no question that the Knights are responsible for the banner, since it says so right on the banner itself.

The Freedom From Religion Foundation, however, has asked the town to remove it.  But as the mayor points out, the banner is actually affixed to private property, so it is not exactly clear that the town has the authority to take it down, even if it wanted to.  (There seems to be some disagreement in the news stories I looked at about exactly what the sign is attached to; some stories say private property, others say public streetlamps and such.  This may be an important fact legally.)

Undaunted, FFRF is now searching for a suitable place to display its own sign: “At this season of the Winter Solstice, may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.”  No word yet on whether they have found a banner big enough.

Games of Chance and Neutral Laws of General Application

Or puoi, figliuol, veder la corta buffa

d’i ben che son commessi a la fortuna,

per che l’umana gente si rabuffa[.]

A story here about consternation in Santa Monica, where it seems that a 60-year old tradition in which various Christian congregations assembled a nativity scene in a public park during the Christmas season has been disrupted by the institution of a neutral, generally applicable municipal lottery system.  As it happened, Fortune favored the atheists.  (h/t Sam Bray)

The Real Story Is That a Public School Was Hosting a Nativity Play

From the UK, a news report about a different kind of Christmas War:

Father’s finger bitten off at school nativity (08 Dec 2011)

A father had his finger bitten off in a brawl with another parent as they waited for their kids’ nativity play to begin.

Parents intervened to pull the men apart as they fought at Harton Primary School, in South Shields, South Tyneside, before the children’s performance.

The 32 year-old victim was taken to hospital where his hand was treated. A 39-year-old man was arrested on suspicion of assault and bailed.

See what happens when we let religion in the public schools? Maybe Justice Stevens was right, after all.

“Providence” Will Have To Go, Too

The Christmas Wars are really heating up, and December’s only just started. From Rhode Island, the setting of the Supreme Court’s first Christmas display case, Lynch v. Donnelly (1984), a new controversy over what to call the 17-foot blue spruce that decorates the statehouse. Governor Lincoln Chafee insists on referring to it as the state “Holiday Tree” rather than “Christmas Tree,” a decision that has exposed him to some ridicule, with critics accusing him of triviality and political correctness. The governor argues that “Holiday Tree” is more consistent with Rhode Island’s long tradition of separating religion and government. No word yet whether the governor will also seek to change the name of the state capital, Providence (est. 1636), so that it too conforms to state tradition.

Which Holiday Is That, Festivus?

One of the pleasures of doing a website on law and religion is that the topic of church and state comes up everywhere nowadays, even the most unexpected places. Let me give an example. I’m a fan of early music – go ahead, laugh if you want to – and look forward every other Thursday to an email from an organization called the Gotham Early Music Scene announcing concerts around New York City. Yesterday’s email had a plug for a “fitting event” for the upcoming “Holiday season,” a fundraiser for Americans United for Separation of Church and State. Americans United is producing a concert of music from the time of Thomas Jefferson, complete with readings from letters between him and his “Parisian paramour” – I’m just quoting the announcement, here – Maria Cosway (left). Jefferson, the promoters remind us, was “the primary architect of the Doctrine of Separation of Church and State.” I’m not sure what any of this has to do with the “Holiday season,” but I suppose secularists need something to do around Christmas, too. Considering that Americans United typically spends its “Holiday season” threatening to sue municipalities that might improperly display a shepherd somewhere, its attempt to cash in on Christmas is a bit ironic. I’m pretty sure Jefferson would have found the whole thing embarrassing. He was always discreet about his relationship with Cosway. She was married.

Christmas Wars Kicked Off… and a Thought About “Neutrality”

The embattled governor of Wisconsin, Scott Walker, has announced that the tree decorated with baubles of various sorts for the upcoming winter season and located on capitol grounds is, in fact, a Christmas tree and not a holiday tree.  Naturally, the move has elicited consternation from some persons (the Freedom From Religion Foundation spokeswoman, for example), who are reported to have complained that the governor’s declaration amounts to a “discourtesy” and a “snub to non-Christians.  Otherwise he wouldn’t do it.”

Apart from the notion that there may well be other reasons to call a pipe a pipe than to injure the feelings of others, this exchange got me thinking about the arguments from religious “neutrality” that are sometimes made to justify the endorsement test in establishment disputes.  The FFRF spokeswoman says that the reason the name of the tree was changed from “Christmas” to “holiday” is “to avoid this connotation that the governor chooses one religion over another.”  That is a standard move in neutrality argumentation: we change the name to avoid even the hint of the suggestion that government is non-neutral when it comes to religion.

Obviously we are not talking about neutrality from the God’s-eye point of view, however.  We can only judge whether a practice is neutral by reference to some base line of social behavior.  Frank Ravitch and Andrew Koppelman (in a forthcoming book), among others, make and turn over these sorts of questions, but consider the following example.  In times of peace, the United States provides non-military aid to the small (and imaginary) country of Blorb.  Blorb now enters into a war with the country of Snorp, and it is very important to the US government that it remain “neutral” between the sides.  What does neutrality demand?  Presumably it would require the US not to begin granting military as well as non-military aid to Blorb (this is part of the reason that I believe neutrality is not an empty concept).  But does it also demand withdrawing non-military aid from Blorb?  Does it require keeping things the same as they were before the conflict?  Does it demand beginning to supply Snorp with non-military aid as well?  Or perhaps with non-military as well as military aid, in order to balance the former aid given to Blorb and withheld from Snorp?

Any one of these answers can be characterized as both neutral and non-neutral — or, as the FFRF rep. put it, as a “discourtesy” or as the public perception of “choosing” this over that.  Calling, as well as not calling, the Christmas tree a Christmas tree is a snub and a discourtesy.  The reason is that the historical base line from which judgments of neutrality operate admit of multiple reasonable interpretations of government action.  Does this mean that neutrality is empty?  I do not think so, as I said above.  If Governor Walker had announced that in addition to the Christmas tree, he was erecting a gigantic golden statue of Jesus right on top of the capitol building, one can quite sensibly speak of that decision as non-neutral.  But though neutrality can do a little bit of work along these lines, its conceptual resources rapidly run out in more difficult cases.  — MOD