"Liberal groups like People for the American Way and the ACLU have opposed public Christmas and Hanukkah displays," says the Committee for Justice in a new radio ad urging confirmation of Supreme Court nominee Samuel Alito. "Some courts and judges have supported this radical agenda, but not Judge Sam Alito."
Alito deserves credit not so much for facing down the secular humanists as for fearlessly wading into the murky constitutional waters of government-sponsored religious displays. Confronted by questions like how many cartoon characters it takes to balance a baby Jesus, a lesser jurist would have thrown up his hands. But not Judge Sam Alito.
In 1999, as a judge on the U.S. Court of Appeals for the 3rd Circuit, Alito was asked to decide whether Jersey City's display of a creche, a menorah, and a Christmas tree outside city hall, which a different 3rd Circuit panel had declared an unconstitutional endorsement of religion, could be saved by adding Kwanzaa ornaments on the tree, a red sled, and plastic Santa Claus and Frosty the Snowman statues. Writing for the majority, he concluded that the new, busier exhibit was "indistinguishable in any constitutionally significant respect" from displays the Supreme Court had upheld.
One of the displays Alito had in mind was an elaborate city-owned "winter wonderland" in Pawtucket, R.I., that included a creche, a Christmas tree, a Santa Claus house, a reindeer-drawn sleigh, giant candy canes, and cutouts of a clown, an elephant, and a teddy bear. If it were up to me, the clown alone would render this display unacceptable, but the Supreme Court ruled otherwise.
Another display that had passed muster consisted of a Christmas tree and an 18-foot menorah in front of Pittsburgh's City-County Building, accompanied by a sign about "our legacy of freedom." In the same case, however, the Court rejected a creche under a banner declaring "Gloria in Excelsis Deo!" ("Glory to God in the Highest!") on the staircase of Pittsburgh's Allegheny County Courthouse.
If there's a principle here, it appears to be "more is less:" The more secular elements, the less danger the display will be understood as endorsing religion. A good decorating rule of thumb also seems to be the tackier, the better. Alito did an admirable job of applying these guidelines in the Jersey City case.
But as Judge Richard Nygaard noted in his dissent, the Supreme Court's "insufficent and inconsistent guidance" has led to "fact-specific inquiries that focus on the size, shape, and inferential message delivered by displays with religious elements, leaving almost any display that has a religious symbol in it open to challenge and any such display that has secular elements, no matter how trivial, open to judicial approval." Perhaps, he suggested, "the behavior at issue here is incapable of being guided."
I think Nygaard is right. While I oppose government-sponsored religious displays as a matter of policy, I've concluded that constitutional challenges to them are not only unsatisfying in their results but intellectually suspect in their premises. All these displays constitute official endorsements of religion to some extent, but that does not mean they represent an "establishment of religion," which is what the First Amendment actually prohibits.
Still, the Committee for Justice is fundamentally mistaken in saying Alito took a stand for "protection of religious expression" when he let Jersey City put up its creche and menorah. The First Amendment guarantees the religious freedom of individuals, not the government's right to erect religious displays on public property.
Fox News host John Gibson, author of "The War on Christmas," likewise claims removing Christmas trees and Santa Claus from city halls and public parks amounts to "the prohibition of free exercise," since "these are secular symbols." In other words, government-sponsored Christmas displays must be permitted because they're religious, and there's no reason to ban them because they're secular. I think Gibson has been reading too many Supreme Court opinions.