Strengthening Constitutional Self-Government

No Left Turns

Oh, Christmas tree!

My latest TAE Online column, blaming our holiday woes on Sandra Day O’Connor (with an assist from the ACLU), is available for your reading pleasure and/or ridicule.

Discussions - 10 Comments

Joe, your column was pretty good, but you shouldn’t waste any more of your time trying to make sense of O’Connor’s pronouncements. They, like Breyer’s dueling opinions in McCreary and Van Orden, have very little to do with the Constitution.

Great article Mr. Knippenberg! I could’nt agree more with you!

Leave it to New Jersey to put up a CHRISTmas tree with "Kwanza’ symbols on it. That is just gross!

Keep up the good fight!

Mack,

Bret Schundler, then the Republican mayor of Jersey City, and the City Council were simly trying to figure out what it would take to get the courts to permit the display.

Joe:

I wonder if governments could not rent space to various groups, and then put a sign up saying that "such and such group rented the space and is no affilated with the government."

This would seem to be a way to satisfy 1st amendment concerns. It seems to me that a tenant may do anything he wishes with the property he rents, and that no one would assume government endorsement of a tenant’s message. I wonder if courts would hold this was a bad faith way of skirting around the 1st amendment, do you know?

I have thought this would be a good solution for quite a while. Various churches have church in schools around Central Ohio, and it seems that is constitutional, so why not just go the extra step and let people rent space and put up whatever crazy message they desire? I am very interested in hearing your ideas about the matter because I know little about 1st amendment religion--law professors do not teach it at Ohio State, I wonder why?

What is it with the Christian obesession of using government spaces to promote their deities? Why the need to be so "in your face" about a particular religion?

GOF,

I guess that you and I disagree about what’s "in your face." Most Christmas displays are passive, and one can avert one’s eyes. They don’t demand adherence, simply respect or toleration.

I have mixed feelings about the religious holiday displays (Christmas or otherwise) on govt. property, but I think your defense of them to GOF is inadequate. "One can avert one’s eyes"?? Couldn’t the same thing be said to defend x-rated billboard ads?

Cal,

I assume that you’re not really comparing religious expression to pornography. The former clearly falls within the First Amendment protections; the latter arguably does not. My point was simply that the celebration of a holiday (Christmas, Hannukah, Ramadan) on public property (and even, I would argue, at some public expense) is an accommodation of religious liberty, not an establishment of religion.

If you’re talking about a private organization establishing a display in a public setting, the state can’t prohibit some and permit others (unless the regulations are neutral and deal largely with "time, place, and manner").

If you’re talking about a publicly-owned display, current Court doctrine generally requires some effort at "pluralization" within the display (e.g., Santa and/or a menorah, in addition to the creche), though I’d argue that a proper reading of the First Amendment would be more permissive. Establishment of religion--Sandra Day O’Connor to the contrary notwithstanding--requires coercion and/or the significant expenditure of public funds. A display isn’t coercive.

I suppose this makes me libertarian, but I see no reason for government to fund religious displays. I think religious songs are fine, and I think private groups should be allowed to erect religious displays on public property (treat it like a commons), but I think it is wasteful to use tax money for these displays and for dealing with the litigation they cause. I would rather buy more police cars, or body armor for police officers, than pay for diverse religious expressions.

Whether constitutional or not, the key issue in this case is some group using government money to express themselves instead of using their own money to do the same. In almost any other area conservatives’ heads would be exploding (think National Endowment for the Arts). I am curious how a conservative could defend public funds for these things. It seems the only way a conservative could is to say that public funding makes the religious display "official" which is what the first amendment (albiet in relation to the federal government) is trying to prevent.

Churches has a lot of resources. It is not right that they pass the buck on to someone else. They should be permitted to erect whatever memorial they believe is fitting on public property.

Steve,

Suppose (this is the most typical scenario) a group donates a display to a city. Could taxpayer funds not be expended to store it, light it, and maintain it? We’re talking de minimis expenditures here.

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