Religious Expression and the American Constitution

3. RELIGIOUS EXPRESSION IN PUBLIC PLACES

3 Religious Expression in Public Places ❖❖❖❖❖ There is one aspect of religious expression that is, atypically, entirely noncontroversial. It is that individuals and groups are entirely free to display their religious symbols on their own property and to speak out orally in public places about their beliefs. What becomes problematic, and a potential violation of the establishment clause of the First Amendment, is when people attempt to display their religious symbols on public property or when taxpayer money is used in part or in whole to support the expression of their religious beliefs or displays. Religious Displays in Public Buildings and on Public Land A source of intense debate in this country over many years has been the erection during the Christmas season of crèches—the Christian nativity scene—in the lobbies or in front of city halls and county or federal buildings , or in public parks. In all of these places except for the public parks it is clear that the government is giving its implicit if not explicit imprimatur to the Christian religion, regardless of who is paying the bill for the display or its erection. In a public park, however, assuming it has been an acceptable 25 forum for other kinds of displays, religious or not, it is relevant to know if the taxpayer’s money is involved. If not, the display arguably enjoys the same rights of free speech as any symbols financed by private groups. A closely related matter that has also stirred great emotion is the placement atop high hills on public lands, or on public buildings, of the Christian cross. The presence of these symbols has led to many lawsuits and a multitude of court decisions, a number of which have gone all the way to the U.S. Supreme Court. There have also been cases involving displays of the Ten Commandments on the walls of public schools or at other public buildings, and involving crosses used as shoulder patches on the uniforms of police and fire department personnel. For the issues to be discussed throughout this book on which the Supreme Court has spoken, we will generally not address the multitude of lower court cases that preceded them. On those matters not yet addressed by our highest court, we will examine a sampling of significant lower court decisions that stand as precedents within the geographical areas they govern. The U.S. Supreme Court has dealt with the creche issue in two important decisions five years apart in the 1980s, both by votes of 5-4, and leaning in opposite directions. The first case, decided in 1984, involved a creche that was erected by city workers each year in a downtown park in Pawtucket , Rhode Island, surmounted by a banner that read, “Season’s Greetings .”1 In reversing the decision of a lower court, Chief Justice Warren Burger, writing for the Supreme Court’s majority, said that although the display “advances religion in a sense,” and “is identified with one religious faith,” it “engenders a friendly community spirit of goodwill in keeping with the season.” He noted that the display of the creche was accompanied by a reindeer and Santa Claus, as well as the greetings of the season, which presumably secularized it enough to make it acceptable to five of the justices . He further expressed for the first time the troublesome view that the historic “wall of separation” phrase, though perhaps a “useful metaphor,” need not be “solely determinative” in adjudicating First Amendment establishment cases. Justice Brennan, speaking for the four dissenters, described the creche as being at “the heart of the Christian faith,” and the majority’s decision as a serious departure from long-standing precedent. One could add, as I would, that it is just as demeaning to serious believers in Christianity to describe a creche as merely a nonreligious seasonal icon as it is to nonChristians to have public monies used to erect a symbol that, as the chief justice admitted, “advances in a sense” a religious faith they do not share. 26 Chapter Three Five years later, in a case from Pittsburgh, Pennsylvania, with facts that were only slightly different, a majority of the justices coalesced around a different point of view.2 Here a Catholic organization had been permitted to erect a creche in the lobby of the county building surmounted with a banner that read, “Gloria in Excelsis Deo.” Five of the justices...