by Andy Norman
Most scholars, jurists, and those who love God recognize that preserving our religious freedoms in the United States today is inseparably linked with promoting religious diversity. When the new, the small, the controversial, and the unpopular are able to express their beliefs freely, we all benefit.
That freedom, however, comes under attack every Christmastime. As carolers sing songs of good tidings and joy, the ACLU and its allies recite mantras of court orders and injunctions. These organizations have misapplied the Establishment Clause so that public expressions of Christmas—especially a religious Christmas—become an almost forbidden activity.
The hostility is underserved. Public displays of religion at Christmastime do not violate the Establishment Clause. The Constitution does not demand that we conform to a hecklers veto. The Constitution demands that we embrace neutrality, and neutrality does not mean exclusion.
When a public school district puts on a Christmas show devoted only to Christianity it runs the risk of violating the Establishment Clause. But when the district includes other religions and makes room for nonreligious speech too, it can allow celebration of Jesus and use of symbols such as the cross and manger scene. Neutrality is the principle which unites religious freedom and diversity in public forums.
Likewise, when the religious freedom of Christians and Jews is preserved from encroachment by the government, many lesser known expressions of faith and even non-faith are kept free. In the words of Jefferson “Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain, by making it altogether insusceptible of restraint….” That government not interfere with the religious expression flowing from this freedom of thought and conscience is paramount. Government neutrality coupled with religious freedom and diversity were the original motivations underlying enactment of the Establishment Clause.
But as always the law of opposition is at work. The anti-religious left (ACLU, Freedom From Religion Foundation, Americans United for Separation of Church and State, American Atheists and others) may deny it, but today they represent the greatest threat to government neutrality, and thereby to religious freedom and diversity.
This seems most evident at Christmastime in their attacks on Christianity through the misuse of the Establishment Clause, whereby they seek, not neutrality, but to eradicate all religious speech from the public square. Since the Everson case in 1947, the heckler’s veto has become their most powerful tool when a public forum is involved. As a result of this simplistic misapplication of the Establishment Clause, the Free Exercise Clause has taken a severe beating in the courts and in the public mind.
As an illustration, in late October 2009 the Freedom From Religion Foundation (“FFRF”) claimed that the presence of a manger display on public property in Warren, Michigan violated the “constitutional principle of separation of church and state.” This was despite the facts that the display was located in a traditional public forum (one allowing the full range of First Amendment expressive activities), and had been placed there by a private citizen every year since 1945. The government bowed to the pressure from FFRF and ordered that the manger be removed in 2009. The citizen sued but the District Court agreed with the government. The Sixth Circuit Court of Appeals reversed in August 2012, calling the manger “protected religious expression.” The manger display returned on December 15, 2012.
In this case the manger was gone for three years, and only extensive, costly litigation undertaken by the ThomasMoreLawCenter (“TMLC”) on behalf of the private citizen restored its presence. In how many instances has a manger or other religious item been removed wrongfully from government property and never returned? No doubt such is the case a vast majority of the time, when an organization such as TMLC is unavailable to carry the fight. As a result, religious freedom and diversity have decreased dramatically in recent decades.
The heckler’s veto can be relentless. For 55 years at Christmastime the City of Santa Monica, California allowed as many as 14 privately owned manger displays in a heavily traveled public park, a traditional public forum overlooking the ocean and near downtown. In 2011 a coalition of anti-religious left groups overwhelmed the City’s auction process for display sites, triggering a bitter dispute with those providing the displays. In 2012, under pressure, the City chose to drop the manger displays entirely, depriving generations of City residents of this religious speech for the first time since the 1950’s. In an inspiring and creative response a number of churches have joined together to present live manger scene reenactments in the park. But the 24/7 presence of the manger displays is gone, perhaps forever.
Nor are the foregoing instances attributable to an isolated grinch Those who would eradicate all public and private religious speech from public forums are highly motivated, well organized and well funded. The ACLU has an affiliate in every state and Puerto Rico and has the reputation and power to cow any school district or small government into submission with just a letter. FFRF’s website claims 100 real time victories in eradicating religious speech in the nine month period between March 6-December 12, 2012. Americans United for Separation of Church and State claims a similar list of victories, plus 42 “religious coalition partners” which it claims have joined it in the war against religious speech.
In support of an accurate reading of the Establishment Clause numerous groups have joined the battle in recent years. These include the Alliance Defending Freedom, the Christian Legal Society, TMLC, Liberty Council and many others. Thanks to these organizations and the private law firms and attorneys willing to take these cases, the tide may be turning. A bit.
But make no mistake. Religious freedom and diversity are more at risk that at any time in our history. To the extent public and private religious speech is scrubbed from public forums religious liberty will be drastically curtailed, especially in a time of rapid increase in the size of government. And when religious liberty is curtailed so is religious diversity. The clear direction today is toward elimination of all religious speech in all public forums.
Andy Norman is senior counsel at Mauck & Baker, LLC, and concentrates his practice in the area of religious liberty litigation on behalf of Christians and churches around the country. Mauck & Baker, established in Chicago in 2001, is nationally known for representing churches, religious institutions, businesses, and individuals.