Unfortunately, one of the ways I know that Christmas is coming is that I begin to hear stories about some kerfuffle or another regarding religion in the public square. One year it’s a nativity scene, the next it’s a menorah, and then it’s some store banishing the Salvation Army’s bell-ringers. Or perhaps it’s a dispute about whether a public school choir can sing “Silent Night” at their holiday concert.
The controversy du jour seems to surround whether or not the civic evergreen should be called a Christmas tree or a holiday tree. Indeed, even the two political branches of the federal government were for a time divided, with Congress having a “holiday tree” and the White House having a “Christmas tree.” (Showing that he’s a uniter, not a divider, House Speaker Denny Hastert has recently “rechristened” the Capitol Hill tree a Christmas tree.) And there was almost an international incident over Boston’s holiday, er, Christmas tree, with Nova Scotia Premier John Hamm asserting last week that “when it left Nova Scotia, it was a Christmas tree.”
I blame it all on Sandra Day O’Connor.
Back in 1984, she wrote a concurring opinion in Lynch v. Donnelly, a case dealing with a publicly-owned crèche in Pawtucket, Rhode Island. Speaking then only for herself, she argued that the essence of the First Amendment is that it “prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” If, for example, the government in effect acts in such a way as to promote or “endorse” religion, it “sends a message to non-adherents 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.” But discerning what the government meant turns out to be complicated:
The meaning of a statement to its audience depends both on the intention of the speaker and on the “objective” meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker’s intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government “speaks” by word or deed, some portion of the audience will inevitably receive a message determined by the “objective” content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning.
Stated simply, whether a government action “endorses” religion requires a judge to put herself in the place of the audience, trying to discern what the action means to them.
Not surprisingly, this turns out to be a subjective process, yielding results that differ with each judge’s personal assessment of what the overall governmental message means. Are there secular images associated with the religious images? Are they comparable in size? Is their placement as prominent? Is the relevant site the immediate scene of the display or a larger geographic area? Are we talking about a small portion of a park, the whole park, or, for example, the entire downtown business district? Should we regard proximity to a public building as happenstance or design, endorsement or accommodation? As Justice Kennedy once noted in dissent, judges seem to be reduced to “using little more than intuition and a tape measure.”
Now, this wouldn’t have been all that mischievous if O’Connor had not soon been joined by her liberal brethren on the bench. In 1989, a majority of the Court adopted O’Connor’s endorsement doctrine, ruling against a nativity scene and in favor of a menorah in Allegheny County v. Greater Pittsburgh ACLU. Most recently, this tangled web of situational judgments reared its head in the two Ten Commandments decisions the Court handed down this past summer. In Van Orden v. Perry, the Court upheld a monument on the grounds of the Texas State Capitol, while in McCreary County v. ACLU, it overturned a display in a county courthouse. In those cases, Justices Souter and Breyer followed O’Connor’s lead, insisting salience of a “legal judgment” that “is not a personal judgment” (Breyer) and arguing that principles, such as they are, can at most give us “a good sense of direction” as we deal with the “indeterminate edges” of the Constitution (Souter). Where we could go from here is anyone’s guess.
Even Judge Samuel Alito has gotten into the act, dutifully attempting to apply the Supreme Court’s confusing precedents in ACLU v. Schundler, a 1998 case dealing with Jersey City’s “‘holiday’ displays,” as he (with some irony) calls them. In his majority opinion upholding a display that included a crèche, a menorah, a Christmas tree with some kwanza symbols on it, and plastic figures of Santa and Frosty the Snowman, he carefully noted the relative size and placement of the various figures and asserted that the most recent version of Jersey City’s display was Constitutionally indistinguishable from those upheld by the Supreme Court in the past. Still, there was a judge whose sense of place and historical context compelled him to disagree.
If I were a public official, I would draw two conclusions from this string of cases. First, it’s highly likely that someone—spell it A-C-L-U—will sue, or at least threaten to sue, if my city, county, or state government makes too overt a gesture in the direction of “the reason for the season.” And second, what counts as “too overt a gesture” is very dependent upon the idiosyncratic and unpredictable sensibilities, in the first instance, of an individual judge, and, perhaps later—many public dollars later—of a panel of judges. A good guardian of the public fisc probably shouldn’t take this risk. Better, perhaps, to call it a holiday tree and endure a little ridicule than call it a Christmas tree and suffer a lawsuit.
The good news, however, is that the tide may be turning. The Reverend Jerry Falwell’s Liberty Counsel has widely publicized a memorandum that lays out in clear and simple terms what the Court’s decisions currently permit and has promised to defend jurisdictions that are threatened with lawsuits if they take a traditional approach to celebrating Christmas. Furthermore, the confirmation of John Roberts and the expected confirmation of Samuel Alito may create a working majority prepared to relieve us of what Justice Kennedy once disparaged as a “jurisprudence of minutiae” and return us to a focus on the traditional elements of Establishment Clause jurisprudence—force and funds, the former compelling worship and the latter “giving direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’”
If we had a Supreme Court willing to accede to the commonsensical notion that neither a crèche nor a Christmas tree coerces anyone’s conscience, but rather merely acknowledges a community’s celebration, inviting all to join, appreciate, or respect it, we might actually have a chance at achieving the rich pluralism and unity our Founders promised. Until then, we’re consigned, at best, to confusion and, at worst, to the kind of timidly bland homogeneity that leads people to refer to holiday trees and businesses to enjoin their employees to be careful about wishing anyone anything other than a happy holiday.
Here’s hoping that next year, we all recognize the season by some more traditional sign.