December 26, 2007

Christmas decorations, the Freedom from Religion Foundation, and a radio alert.

I'll be on WORT radio today at noon Central Time, talking about Christmas decorations and the Constitution with Annie Laurie Gaylor of the Freedom from Religion Foundation. (She's a co-president of the organization, which is based in Madison.)

You have to be in a 50 mile radius of Madison to listen on the radio (at 89.9 FM), but you can listen on line here. We'll be in the studio and taking questions by phone. At (608)-256-2001 or (toll free) at (866) 899-WORT. After the show, go to the archive to listen.

If you want to bone up on the law beforehand, read Lynch v. Donnelly — the case where a creche was held constitutional — and County of Allegheny v. ACLU — the case where the creche was not constitutional (but a Christmas + menorah was). For extra credit, read Capitol Square Review Bd. v. Pinette — which held that Ohio violated the KKK's free speech rights by not letting it put up a cross on the statehouse square. There are also the two cases about Ten Commandments displays that were decided on the same day in 2005 Van Orden v. Perry (constitutional) and McCreary County v. ACLU (unconstitutional).

The Freedom from Religion Foundation just filed suit against mayor and City Council president of Green Bay, Wisconsin, over a creche outside city hall:
Mayor [Jim] Schmitt says Christmas is a nationally-recognized holiday, and city leaders have every right to adorn city hall with Christmas flair.

"I'm saddened by what has all transpired here. I'm saddened by the lawsuit, by some of the divisiveness it's caused, but it's Christmas and I'm going to celebrate it," Schmitt said....

"They're sending a message of endorsement of christianity over other religions and they're sending a message of exclusion to everybody else," said Annie Laurie Gaylor....

"In my opinion, it was a very expensive for taxpayers publicity stunt by a right-wing politician," Gaylor said.
Expensive? The expense is the litigation.

Here's an opinion piece by Dan Barker (who is the foundation's other co-president):
[S]ome of us do find the anti-humanistic nativity scene offensive since it assumes we are all sinners in need of salvation and slaves who need to humbly bow to a dictator — in a country that is supposedly proudly rebellious, having fought a Revolutionary War to expel the king, sovereign and lord.
And here's my 2004 post about the Christmas decorations in the Wisconsin Capitol building, including a photograph of a sign the state allowed the Freedom from Religion Foundation to display, which tells us "Religion is but myth and superstition that hardens the heart and enslaves the mind."

ADDED: Here's some background on the Green Bay creche. Don't miss the time line:
Wednesday, Dec. 12 – Schmitt is bombarded with e-mails, phone calls and criticism and praise for the display. He says the city likely will have to honor all requests for display space until the City Council can draw up guidelines and limits.

Thursday, Dec. 13 – City receives six formal requests to display symbols on the roof.

Friday, Dec. 15 – Practitioners of Wicca, a religion associated with witchcraft, drop off a wreath containing a pentacle, a five-pointed star used as a Wiccan symbol for the elements of nature. The wreath is installed on the entrance roof.

Saturday, Dec. 16 – City receives a request to display a plain aluminum pole, said to be a symbol of Festivus, a religion promoted by the TV show "Seinfeld."

Monday, shortly after midnight – Police receive a report someone removed the Wiccan display. Schmitt announces no displays other than the nativity scene will go on the roof until the City Council meets and decides a policy....
Ironically, trying to make the public recognition of Christmas more serious ends up making it more of a joke. There is a symbiotic relationship between litigious atheists and pandering politicians. They serve each other's interests, but does anyone else benefit?

ADDED: I corrected mischaracterization of the creche in Lynch.

UPDATE: Gaylor ended up phoning in and only making herself available for 5 minutes. She had her points ready and reeled them out on cue. But when she took at gratuitous swipe at George Bush for closing the federal government on the day before Christmas, and I disrupted the presentation by asking if she thought the Christmas holiday violated the Establishment Clause. She refused to answer and rushed off the phone. I got the impression that she was unnerved at the idea of going off script and exposing her ideas to scrutiny. I noticed that she continually asserted that the Establishment Clause law is very clear — which is laughably wrong and therefore best to done as a monologue or when — excuse the expression — preaching to the choir.

38 comments:

Revenant said...

Schmitt announces no displays other than the nativity scene will go on the roof until the City Council meets and decides a policy

I wonder what the reasoning was behind that decision? I would think the sensible thing to do would be to either allow everything, or nothing, until a policy is in place.

rdkraus said...

Every year I'm conflicted about this.

1. The atheist radicals should STFU.

2. The atheist radicals are right.

rhhardin said...

Argue that the creche dramatizes the plight of the homeless and they'll go along.

Then it's a proper state interest.

Simon said...

I think RDkraus is half-right.

hdhouse said...

Ann, did you mis-type? In Donnelly "The display is situated in a park owned by a nonprofit organization..". The creche itself was public property, not where it was set up.

Middle Class Guy said...

Every year we go through the same thing- Christmas decorations or Christmas lawsuits. I am starting thi think- which is dangerous- that the issue is not about freedom of religion versus freedom from religion. The issue is about generating legal fees and/or settlements or judgements.

AllenS said...

Annie Laurie Gaylor is a cold-hearted, tight fisted, selfish woman, who despises Christmas and all things which engender happiness. Scrooge with a law degree.

Ann Althouse said...

hdhouse: Thanks. Corrected.

Mr. Forward said...

You will be following WORT's and the nation's best Real Country Music show host, Bill Malone. Too bad you couldn't be his guest.

The Wednesday "Public Affairs" show at noon that you will be on is hosted by Esty Dinur, Madison's answer to Chris Matthews.

Expect at least one 9/11 truther call.

P. Rich said...

Madison seems to breed and support an army of leftist crap weasels. Why is that, AA?

Simon said...

Mr. Forward said...
"Expect at least one 9/11 truther call."

It is Madison, Wisconsin, after all.

Jill said...

I'm a church/state separation absolutist, but I think that the annual fights over these symbols don't serve any constructive purpose. Technically, if you're going to put a creche on government property, the "equal time" thing to do is not to put up a menorah and kwanzaa symbols, but to give equal time to the symbols of other religions at their MAJOR festivals (which Chanukah is not).

Where I'm sitting, the theocratic aims of much of the Christian right are exemplified by far more important tactics than whether you put a plastic holy family on a town hall lawn. I'm a lot more concerned about attempts to teach Biblical accounts of creation as science in the public schools, allowing proseletyzing and conversion attempts among children, and declaring this a Christian nation beholden to Jesus rather than the Constitution, than I am about this relatively insignificant issue.

Simon said...

Jill said...
"I'm a church/state separation absolutist, but I think that the annual fights over these symbols don't serve any constructive purpose."

To the contrary, they're very constructive in the sense that they alienate reasonably-minded people from the militant atheist cause. Reasonable people see things like this, or American Atheists v. Duncan, or Michael A. Asshole's repeated lawsuits, see e.g. Elk Grove Unified School Dist. v. Asshole; Asshole v. U.S. Congress et al (in which Asshole offensively casts himself as victim of the sort of oppression the court struck down in Loving v. Virginia - I'm not kidding, he reall made that argument before the Ninth Circuit earlier this month) and say "I want nothing to do with these people." The behavior of extreme militant atheists belie their rhetoric of tolerence, and reminds moderates just what kind of country these extremists want to enforce. So they do serve a purpose, just not their own.

Father Martin Fox said...

I think RDKrause is 3/4ths right.

As to his or her second proposition: the "atheist radicals" are only barely right, and only because of the stupid law their nuisance litigation has spawned.

I really don't care for politicians getting involved in displaying the birth of Christ, I cringe when we start adding all the other stuff because then the whole point of displaying the nativity is lost; and I positively loathe the attitude the battle over this.

Just outside my window, in the rectory beside my church, is a nativity scene put up for all to see. No menorahs (which wouldn't bother me, except it wouldn't make sense in the creche), no Festivus poles, et al. And no legal dispute, Deo gratias, at least until someone decides that even having to look at a creche is somehow a violation of his or her rights, and as ridiculous as that seems, remember how hard parody usually has to work to stay ahead of reality.

But I really think we'd have all been better off if courts had simply dismissed these cases without ruling, and we'd left things alone. The notion that a creche on public property represents either an establishment of religion, or some sort of "oppression," is pathetically ridiculous. (And I might emphasize that "establishment of religion" is the key, legal issue, not "separation of church and state.")

former law student said...

Jill is right -- the seasonal symbols of the worlds' religions don't all have to be displayed at the same time. The end of Ramadan moves all over the calendar, making Easter look predictable. Diwali is much earlier than Christmas. How do Jews decorate for Rosh Hoshanah and Pesach, anyways?

former law student said...

Father Fox, the goal is religious apartheid, where religious speech is suppressed from any public forum.

AllenS said...

How about a constitutional amendment for/against Christmas decorations on state property?

rdkraus said...

former

There are many public forums which are not gov't forums. If a Church puts a creche on the front lawn of ITS property (or any person on THEIR property), it is there for all the public to see, without any gov't involvement.

Atheists, which I'm not, seek to get the gov't out of the religion business, not the public (OK, some probably want that too, but that's a different issue).

There are countless other forums, which are not gov't forums.

Simon said...

Father Martin Fox said...
"The notion that a creche on public property represents either an establishment of religion, or some sort of 'oppression,' is pathetically ridiculous. (And I might emphasize that 'establishment of religion' is the key, legal issue, not 'separation of church and state')"

I always wonder: in Abingdon, Justice Douglas - no conservative he - described the vice of "arrangements" that violate the Establishment Clause as being "that the state is lending its assistance to a church's efforts to gain and keep adherents." Do those who accept the "wall of separation" metaphor (but see then-Justice Rehnquist's Wallace v. Jafree dissent) agree with this, and if so, which "church," specifically, is being assisted in gaining and keeping adherents by the display of a creche? One might use the term "the Church" to refer to the entire body of Christian believers, although I think that usage is made awkward by rareness, certainly compared to its usage referring to the entire membership of a church. Just as a matter of pure linguistics, it seems to me that when one refers to "a church" (as opposed to "another church") it connotes either a specific church or at most a specific denomination. Does the action of the state to erect (or, even more innocuously, permit the placement by a third party on public property of) a creche advantage the 1st Baptist Church of Christ's efforts to gain and keep adherents versus those same efforts by the Third Reformed Baptist Church of God? Does it advantage the Lutheran church vs. the Episcopalean church?

We're never going to get this right until we return to what is in my view the key insight of Lynch v. Donnelly that "the Establishment Clause forbids an established church or anything approaching it." Saying that a creche on public land establishes a church would be facetious at best, and it "approaches" establishment only in the sense that a ship traversing the Straights of Gibraltar is "approaching" our Eastern seaboard.

By the way, something to consider, prompted by RDkraus' 11:12 comment. For the most part, these people aren't just atheists, they're socialists of either the hard or the soft kind. In the long run, they want to increase the domain of government. So while it may or may not be deliberate, you see both a desire to make the government sphere hostile to Christianity, and then to expand the sphere of government, thus crowding out those non-governmental actors whose religiosity they can't shut down with the establishmemt clause. Universal healthcare will serve as the predicate for arguing for the exclusion of any kind of religion from healthcare. It doesn't take much to join the dots.

Mr. Forward said...

Well, I'm O for 2. The regular host and the regular truthers must be out of town. Substitute host and Ann did a great job, real conversation ensued.

Ann mentioned a monument in Texas that was allowed to remain, possibly because it had been there for decades before any one complained. Does that mean there is a statute of limitations on limiting statues?

Ok, that's 0 for 3.

PatCA said...

Where in the Constitution does it say the majority has to accede to the demands of a couple of cranks?

Why don't these types stop with the lawsuits and the secret complaints to officials and try to elect atheists who will attempt to pass laws to their liking? Or are they against America too?

Ann Althouse said...

The host was my law school colleague Tonya Brito. You might remember this vlog we did together/

Simon said...

I agree, it was very good, and I thought it was funny that they had that parody of a clueless FFRF drone on at the start ("huh? is there someone else there? I Have to go!" Priceless).

Maybe this will become clearer when we can listen to it again, but Ann, did I understand you to say that you thought it would be a bad idea for doctrine to recognize how long a practice has been extant as a defense against a lawsuit challenging it now? Why would that be? Could you expand on that thought a little (assuming I heard correctly)? Would you also be opposed to applying something akin to laches to constitutional claims brought by individuals who've slept on their rights (so, for example, in the Asshole v. U.S. Congress case that you alluded to, Asshole is in his mid-fifties and claims to have been a lifelong atheist - but presumably he didn't start using money for the first time earlier this year, so to the extent he could have brought a suit at any time for the last thirty years or so, he's slept on his rights so why shouldn't he be barred from seeking relief?)

Ann Althouse said...

"Maybe this will become clearer when we can listen to it again, but Ann, did I understand you to say that you thought it would be a bad idea for doctrine to recognize how long a practice has been extant as a defense against a lawsuit challenging it now?"

I was thinking about segregation and many other subjects where it took the Court a long time to get around to calling something unconstitutional.

Simon said...

PatCA said...
"Why don't these types stop with the lawsuits and the secret complaints to officials and try to elect atheists who will attempt to pass laws to their liking? Or are they against America too?"

Well, there's a hair to be split between words and the ideas they are usually taken to connote. They're not against the word "America," and they want to live in a country called "America," it's just that they are opposed to many of the things that the actual historical country usually connoted by the word "America" has actually been. It's like the people who say they're not opposed to having a United States Senate, they just want a United States Senate where there are no supermajority rules and the Senators each have an equal (precisely equal, per Justice Brennan) number of constituents. In other words, they want to abolish that which is, and create something wholly new in its place which they will call by the same name. It's reform the coca cola corporation way: label a completely new product with the same name as the old product, claim you're displaying greater fidelity to the intent of the founding bottlers, and hope enough people are fooled.

jeff said...

Well, as a agnostic I have to say I don't feel oppressed by a nativity scene. I wonder about the placement on the roof, since the roof seems a very inconvenient place for a pregnant woman to give birth, but I have no real objections, and certainly don't think that the local government is establishing a religion based on that. I find all the decorations pretty, and it reminds me of my childhood when the downtown department stores as well as the city went all out during the season.

Simon said...

Ann,
Okay, I see. Setting that aside, I guess I'm almost a little more interested in what you'd think about the other situation I suggested, where instead of anyone being precluded from challenging a practice, an individual litigant has slept on a Constitutional claim that they could have brought for years and years, and then eventually get around to filing them? Laches wouldn't precisely apply, but does that have a certain Breyerian pragmatism to it, in disposing of these frivolous and divisive claims?

Blake said...

Anyone up for starting Freedom From Atheist Lawsuits?

JCooperNYC said...

I was the last caller on the radio show today. I am from Brooklyn, NY and Jewish. For many years I earned a good part of my income from selling at retail and wholesale Xmas supplies. I was a Chaplain's Asst. in the army and part of my job was helping to run the Protestant Sunday School. I love Xmas, my Sirius radio is tuned to Xmas music this time of year. As a kid I didn't hang up a stocking for Xmas; I hung up a pillow case. Through the army and living in NYC, I know more about the Gospel than most Christians I know.
But having said all that. What worries me is not the manger in front of a city hall or Xmas songs being sung in a school, is the idea by many that to oppose those things is Un-American. Christianity is based on the idea of speading the good news. Well what is good news to some is bad news to others. When I was a kid in school I was forced to sing The Lord's Prayer in order to go to my Jr High graduation. (this was mandated by The Board od Ed in NYC in a school that was 2/3 Jewish.} I do not wish for that type of thinking to return. But the religious right has made it very clear as to their intent. (I saw on a magazine tv show a movement in South Carolina to change their constitution to make it a christian state.} I have travelled to the middle of the country to see friends and for business and some of the thinking or non-thinking that is going on scares me as an American and a Jew. There is an opinion that this is a Christian Country not a country of mostly Christians. My experience has been that most "Good" Christians (Good is in quotes} are very inflexible in their opinions which makes it very to com up with solutions that will satisfy all.
The manger may just be the line in the sand that people have drawn.

i heard a quote about a week ago that stated' "If Fasism comes to America, it will be rapped in a flag carrying a cross." this maybe an overstatment but but sometimes it feels thst way.

Ann Althouse said...

Simon said..."Okay, I see. Setting that aside, I guess I'm almost a little more interested in what you'd think about the other situation I suggested, where instead of anyone being precluded from challenging a practice, an individual litigant has slept on a Constitutional claim that they could have brought for years and years, and then eventually get around to filing them? Laches wouldn't precisely apply, but does that have a certain Breyerian pragmatism to it, in disposing of these frivolous and divisive claims?"

When you're talking about ongoing violations, I think people should be able to assert their rights. The fact that something has gone a long time without being challenged, however, can be viewed as evidence that it isn't a violation of rights, which is what I take Breyer to be saying. This may be special to the problem of religious displays, because it suggests that the display is not seen as an endorsement of religion by a reasonable person.

PatCA said...

JCooper,

I would only gently urge you to look at history and take the media-reported instances of nutcases with a grain of salt. This country of Judeo-Christian tradition has steadily become more inclusive and sensitive to the feelings of other religions than Christian.

As Debbie Schlussel says: "Remember, it is because of America's strong Christian tradition that we have not fallen to Islam in the way Europe, er . . . Eurabia is. About 75% of Americans are Christians. It is because of your strong faith that I am able to freely practice my faith. While some try to erase references to Christmas in America--whether in commerce or in education, whether in Hollywood or in trying to decimate Nativity scenes at the local city hall lawn--I am not among them. I do not share your religion and nor some of your religious beliefs, but I celebrate that you celebrate."

Don't miss the forest for the Christmas tree.

Walter said...

I'm listening to the archive of the radio program and it funny to notice that all three callers so far have talked about a local Madison issue of a Churched owned apartment building and taxes rather than asking a question on the actual topic of the day.

hdhouse said...

simon....and incidently patca...

the distintions in the two main cases ann asked us to reference in her post are crystal clear. actually this case has a fact pattern that aligns almost perfectly wih allegheny and the conclusions in lynch just reinforce the difference.

pat....you just need to get a grip on things. keeping the state out of the church is both good for the church and good for the state. look at the huckleberry ad with the cross in the background. we ge a well meaning zealot in office (as opposed to a mean spirited zealot like mr. bush) and the push will come to shove but there will be one at all times. it wastes our time. it exhausts the courts with a stream of bullshit nitpicking.

more to the point, it cheapens the role and mission of the church. is the church so weak in a society where it represents an identified majority that it needs to enlist the state in order to heighten its position? does that make any sense whatsoever to you? to anyone?

JCooperNYC said...

Pat,

I understand what you are saying. There are many of good intent. But what Debbie S. says does not make me feel any better. To me many of my friends we are on a "Holy Christian Crusade" in our policies. The Christian Right and the extremist Muslims, the only difference is our guys wear suits.

Past history has shown in such times, Jews don't do too well.

My daughter when going to college in Maryland right after 9/11 had listen to some teachers and students say that it was a Jewish plot. Jews were told of the attack and didn't go to work that day. My son, who is a standup comic has been booed on stage when he did a joke about being Jewish (This was outside of Philly PA). A agent told him never mentionm that you are Jewish outside of a big city. Over my life, even living in NYC I have been cslled many names over then years. Also since I "don't look Jewish" many comments have been made to me about Jews. Just last week on the Howard Stern Show he did a prank. He sent someone to 30Rock to ask tourists of what they thought of Jews wanting the Xmas Tree taken down. The remarks were less than kind.

The world is polorized and so are we. We live in fear. The funny part is that here in NYC we seem to be able to live with the fact that if there is an attack or war we will be one of the first to go.
It seems that middle America is doing most of the worrying.

PatCA said...

It's the extreme left that says 9/11 was a Jewish plot. The evangelicals actually love Israel.

And you lost me with "the Christian Right and the extremist Muslims, the only difference is our guys wear suits."

So, there you go. We're not in the same conversation, so goodnight all.

JCooperNYC said...

Last Comment on this:

They love Isreal because of "End of Days". In the end, The Gospel says that all that remain Jews are damned.

The "suit" comment means that the Christian Right are our Taliban.

David said...

JCooper...."They (evangelicals) love Israel because of "End of Days"...actually, I think evangelical support of Israel is only partly based on theological factors.

Americans naturally have an affection for a small, democratic country that is thriving despite great odds. The hostility toward Israel that does exist emanates largely from "progressives," especially academic progressives. Evangelicals are mostly from social classes that are outside the force field centered on the university (and amplified by PBS, etc) and hence their natural sympathy for Israel survives intact.

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