Posted on 12/08/2004 2:10:03 PM PST by SJackson
Read the ACLJ's Position in our Religious Holiday Displays Information Letter
Dear Concerned Citizen:
Undoubtedly, members of your community are making preparations for the celebration of the holidays by decorating public streets, sidewalks, and parks with a variety of cheerful and festive holiday decorations. Some communities may choose decorations which include snowmen, reindeer, trees, bells, holly, etc. Most certainly, there will also be many wishing to express the religious origins of the holiday season by erecting nativity scenes and menorahs.
By way of introduction, the American Center for Law and Justice (ACLJ) is a not-for-profit public interest law and educational group. Our organization exists to educate the public and the government about the right to freedom of speech, particularly in the context of the expression of religious sentiments. Jay Sekulow, Chief Counsel for the American Center for Law and Justice, has served as lead counsel in three significant Supreme Court cases in this area: Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000); Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993) and Westside Board of Education v. Mergens, 496 U.S. 226 (1990) and has submitted amicus briefs on behalf of the ACLJ in the Supreme Court cases of Good News Club v. Milford Central School Dist., 121 S. Ct. 2093 (2001); Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995); and Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995).
This letter addresses the constitutionality of privately-erected holiday displays, and will assist you in defending the rights of citizens in your community who desire to erect such displays during the holiday season. This letter will specifically address your questions regarding the placement of religious Christmas displays in public parks. You may use this letter to educate your city leaders about your rights. Please call me if after reviewing this letter you would like me to correspond with your city officials directly.
I. The First Amendment to the United States Constitution Protects the Rights of Citizens, Civic Groups, and Churches to Erect Private Religious Displays in Public Forums.
The Constitution protects the rights of private citizens to engage in religious speech in a "public forum." In a leading First Amendment case, the Supreme Court held that a private group could erect a cross in a public park during the holiday season. Capitol Square Review and Advisory Board v. Pinette, 515 U.S. at 760. The Court explained:
Respondents' religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a First Amendment orphan, is fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.
Id. (internal citations omitted).
Key to the Court's decision were the following facts: 1) the public park in question had historically been open to the public for a variety of expressive activities; 2) the group erecting the cross had requested permission through the same application process and on the same terms required of other private groups; and 3) the group planned to accompany the cross with a sign disclaiming any government sponsorship or endorsement. Id. at 763; id. at 782 (O'Connor, J., concurring); id. at 784 (Souter, J., concurring).
Before Pinette, the Supreme Court decided two other cases involving the constitutionality of holiday displays. Lynch v. Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU, 492 U.S. 573 (1989). Although they involved holiday displays erected either by the government itself on private property, Lynch, or on government property that was not a public forum, Allegheny, those two cases establish that religious displays on other types of government property (other than a public forum) may also be constitutional if they are accompanied by other secular symbols of the holiday. For example, the holiday display upheld in Lynch contained a creche as well as a Santa Claus house reindeer, candy canes, a Christmas tree, carolers, and toys. 465 U.S. at 671. The display upheld in Allegheny contained a menorah and a Christmas tree. 492 U.S. at 582.
Thus, Pinette, Lynch and Allegheny teach that private citizens may erect religious displays on public property if: 1) the property is a public forum on which the government has permitted a wide variety of expressive conduct; and 2) there is a sign informing the public that the display is sponsored by private citizens and the government is not endorsing the message of the display; or 3) the display is accompanied by a variety of secular holiday symbols such that the overall message of the display is not exclusively or primarily religious.
Most lower federal courts have upheld the rights of private citizens to erect holiday displays in public parks. Any cases where the courts have denied private citizens such a right predate Pinette and are therefore no longer good law. Following is a summary of the decisions from various courts of appeals around the country. Even in the absence of a case from your jurisdiction, it is imperative to understand that the Supreme Court's decision in Pinette is binding upon every state.
A. Court of Appeals for the Second Circuit - governing the States of Connecticut, New York and Vermont
In Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997), the court upheld the constitutionality of a privately erected menorah in a public square. A sign posted near the menorah indicated that a private group had sponsored the display.
Prior to Elewski, the Second Circuit had denied private groups the right to erect religious displays in public parks. See, e.g., Chabad Lubavitch v. City of Burlington, 936 F.2d 109 (2d Cir. 1991); Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989). In Knights of Columbus v. Trumbull, 515 U.S. 1171 (1995), however, decided the same day as Pinette, the Supreme Court vacated a Second Circuit decision holding that the Establishment Clause prohibited private citizens from erecting a creche in a public park. The Supreme Court ordered the Second Circuit to reconsider the case in light of Pinette. Id. On reconsideration, the Second Circuit reversed its prior decision and remanded the case for a determination of whether the proposed creche would comply with the guidelines set out in Pinette, including whether there would be a sign near the creche disclaiming government endorsement. Creatore v. Town of Trumbull, 68 F.3d 59, 61 (2d Cir. 1995).
B. Court of Appeals for the Fourth Circuit - governing the States of Maryland, Virginia, West Virginia, North Carolina, and South Carolina
In Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990), the Fourth Circuit held that the Establishment Clause banned a local Jaycees from erecting a creche in a public forum. Notwithstanding the fact that the display constituted private religious speech in a public forum, the court held that because the display would be near a county office building, the display would convey an "unmistakeable message" of government endorsement of religion. 895 F.2d at 958. Smith predates and cannot be reconciled with Pinette. In Pinette, the Court cited Smith as well as the Second Circuit's decisions in Kaplan and Trumbull, indicating that its decision Pinette would resolve the split in the federal appellate courts on the question of private religious displays in public fora. Thus, although Smith is the only case in the Fourth Circuit addressing the constitutionality of private religious displays in public fora, it is has been invalidated by the Supreme Court's decision in Pinette.
C. Court of Appeals for the Sixth Circuit - governing the States of Kentucky, Ohio, Michigan and Tennessee.
In Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, (6th Cir. 1992), the Sixth Circuit has also held that a privately funded menorah display erected during Chanukah in a traditional public forum does not violate the Establishment Clause. The Court stated: "What the members of Chabad House seek in this court is fully consistent with, and does not violate, our traditional division between church and state. ... They merely ask that they not be spurned because they choose to praise God. Instead of forcing them to remain on our sidelines, our Constitution offers them platform from which to proclaim their message. In a traditional public forum, as at the ballot box, all citizens are insiders as they seek to influence our civic life." Id. at 1555.
D. Court of Appeals for the Seventh Circuit - governing the States of Illinois, Indiana, and Wisconsin.
In Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc), the Seventh Circuit upheld the right of private citizens to display in a public park paintings depicting the life of Christ. The Doe Court rejected the argument that the exhibition had been "poisoned" because at one point the government owned and sponsored the exhibition of the paintings. The court held that the city had properly relinquished ownership of the paintings to a private group and that such relinquishment cured any government endorsement of religion that occurred as a result of the city's ownership of the paintings. Id. at 621.
In Grossbaum v. Indianapolis-Marion County Building Authority, 63 F.3d 581 (7th Cir. 1995), the Seventh Circuit reversed the district court's decision refusing to allow a religious group to display a menorah in a government building. This decision is notable because the building was held to be a non-public forum, but was similarly allowing usage to various groups. In upholding the religious display, the court relied heavily on Pinette, and held that the previous denial was unconstitutional viewpoint discrimination. Grossbaum, 63 F.3d at 591. The court further stated that the "religious holiday" was correctly characterized as a "subject" for purposes of the forum analysis, and the religious display must be included along with the various other viewpoints. Id. at 587.
E. Court of Appeals for the Ninth Circuit - governing the States of California, Arizona, Nevada, Oregon, Idaho, Washington, Montana, Hawaii, and Alaska.
In Kreisner v. City of San Diego, 1 F.3d 775 (9th Cir.1993), the Ninth Circuit upheld a city's grant of a permit allowing a private group's annual request for use of a pavilion in a public park for a biblical display during the holiday season. In affirming the free speech rights of private citizens, the Kreisner Court held: "the Committee [seeking to erect the display], like other citizens of diverse views, has a right to express its views publicly in areas traditionally held open for all manner of speech. Tolerance of religious speech in an open forum does not confer any imprimatur of state approval on religious sects or practices." Id. at 785.
F. Court of Appeals for the Eleventh Circuit - governing the States of Alabama, Florida, Georgia
In Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993), the Eleventh Circuit upheld the right of a religious group to erect a religious display in a public forum within a government building during a religious holiday. The court relied heavily on the principle established in Lamb's Chapel, Widmar, and Mergens: the Establishment Clause does not present a barrier to religious persons seeking equal access to public properties on the same basis as other groups in the community. The Miller court stated that "[b]ecause the religious speech is communicated in a true public forum...the state, by definition, neither endorses nor disapproves of the speech. By permitting religious speech in a public forum-- whether in the heart of a core government building, in the Georgia Governor's mansion, or in the outer reaches of some state-owned pasture-- the state simply does not endorse, but rather acts in a strictly neutral manner toward, private speech." Id. at 1393.
G. Conclusion
There is virtual unanimity among the federal courts that private religious displays in public fora are constitutional. In parks, town squares, plazas, and even government buildings which have been opened up for public expression, citizens, civic groups, and churches can erect private religious displays without violating the "separation of church and state." Arguments that such displays cause an Establishment Clause problem are completely devoid of merit.
II. Frequently Asked Questions
There are many questions that may be raised when dealing with the important issues of free speech in the context of privately sponsored religious displays. Following are answers to questions that arise most frequently.
A. What is a public forum-
The United States Supreme Court has identified three types of public property for First Amendment expressive purposes: the traditional public forum; the open or designated public forum; and, the non-public forum. Perry Education v. Perry Local Educators Ass'n, 460 U.S. 37 (1983). There are certain government properties that are presumed to be traditional public fora such as streets, sidewalks, and parks. See United States v. Grace, 461 U.S. 171, 177 (1983). As the Supreme Court has stated:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public, and time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions.
Hague v. C.I.O., 307 U.S. 496, 515 (1939).
If you were to think for a minute, you might be able to come up with other places in your area (in addition to the public streets, sidewalks and parks) that have been opened for citizens to express their views. Perhaps your city has a town square or public plaza where the annual folk life festival, music concerts or political rallies are held. You also may think of other places such as community centers where local groups have held their weekly meetings, food drives, or charity bazaars. Such areas, which "the state has opened for use by the public as a place for expressive activity," are considered to be "open or designated public" fora.
Whether the property in question is considered a traditional public forum (a street, sidewalk, park, or plaza) or a designated public forum (perhaps a government building, community center or other state-owned facility), the right of governing authorities "to limit expressive activities are sharply circumscribed." Perry Education Ass'n, 460 U.S. at 45. State officials cannot censor religious speakers from these places unless they demonstrate a compelling government interest for such a content-based exclusion. Carey v. Brown, 447 U.S. 455, 461, 464 (1980). The Court held in Lamb's Chapel, 508 U.S. at 494, that: "[t]he principle that has emerged from our cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others."
B. Does the "separation of church and state" forbid religious displays on government property-
NO. Some officials mistakenly believe that the Constitution mandates that no religious activity can take place on public property-- even when private citizens are involved. The Supreme Court has consistently ruled that the Establishment Clause does not require a state entity to exclude private religious speech from a public forum. It is, in fact, "peculiar to say that government 'promotes' or 'favors' a religious display by giving it the same access to a public forum that all other displays enjoy. And as a matter of Establishment Clause jurisprudence, we have consistently held that it is no violation for government to enact neutral policies that happen to benefit religion." Pinette, 515 U.S. at 763-64.
In one of the most powerful proclamations upholding the rights of private religious speech in a public forum, the Supreme Court stated:
The contrary view...exiles private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech. It will be a sad day when this Court casts piety in with pornography, and finds the First Amendment more hospitable to private expletives, than to private prayers. This would be merely bizarre were religious speech simply as protected by the Constitution as other forms of private speech; but it is outright perverse when one considers that private religious expression receives preferential treatment under the Free Exercise Clause. It is no answer to say that the Establishment Clause tempers religious speech. By its terms that Clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech connected to the State only through its occurrence in a public forum.
Pinette, 515 U.S. at 766-67 (internal citations omitted).
Moreover, in Mergens, the Supreme Court noted a key distinction in this regard: "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." 496 U.S. at 250. In fact, the Supreme Court has stated that such a policy of excluding private religious speakers from public places when other speakers are permitted without interference from officials is unconstitutional:
Indeed, the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion. 'The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.'
496 U.S. at 248 (citing McDaniel v. Paty, 435 U.S. 618, 641 (1978)).
C. Haven't other Supreme Court decisions held that religious displays are not allowed on government property-
YES, but the displays in those cases were either erected by the government or were not in a public forum. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court addressed the constitutionality of a government-erected creche. Significantly, the Lynch Court upheld the constitutionality of the holiday display in that case because the creche was a part of a larger holiday display in which there were a variety of secular symbols. Private religious speech, however, was not involved in Lynch.
In County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), private citizens erected a creche inside a government office building. The situs of the creche was not traditionally open to a variety of speakers, and the Supreme Court specifically noted that the public forum question was not involved. 492 U.S. at 600 n. 50.
In Pinette, the Supreme Court distinguished Allegheny by noting that location of the creche in that case was not a public forum, but if it had been, "the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche." Pinette, 515 U.S. at 764 (internal citations omitted). Thus, despite what special interest groups may claim, Lynch and Allegheny do not support the proposition that public officials must exclude private religious speech from a public forum. Any resort to these cases to justify prohibiting private citizens from erecting religious holiday displays in traditional or open public fora is erroneous.
It is our hope that this letter has helped clarify the rights of private citizens to erect religious displays in public parks and other public forums. The American Center for Law and Justice is committed to defending the rights of individuals in the public arena. Because of our commitment, we are available to answer any questions you might have concerning this letter. Please feel free to share this informational letter with your city council, their attorney and others in your community.
Very truly yours,
AMERICAN CENTER FOR LAW AND JUSTICE
JAY ALAN SEKULOW CHIEF COUNSEL
I thank God that Jay is on our side...........
As a resident of the above-mentioned Allegheny County (Pittsburgh PA), I applaud the victory won in that historic decision upholding the right of religious expression.
Nice post S.
Merry Christmas!
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