Christmas Bombing: The annual assault on religious freedom - religion and state

It used to be that the most dependably dreadful holiday traditions were relatively benign, like the Return of the Undead Fruitcake, passed around uneaten from generation to generation, or the Andy Williams Christmas Special, that especially cheesy slice of Yuletide splendor. These days, however, nothing signals the approach of Noel more reliably than assorted right-thinking jackasses forbidding any public acknowledgement of Jesus' birth, out of fear that someone, somewhere, will be offended. It has become an American civic tradition.

In New York City, Andrea Skoros, a Catholic mother of two public-school children, has filed a federal lawsuit against the city's schools, arguing that their ban on Nativity scenes amounts to religious discrimination. According to the Board of Education's lawyer, "The display of secular [emphasis his] holiday symbol decorations is permitted. Such symbols include, but are not limited to, Christmas trees, Menorahs, and the Star and Crescent."

Now, a reasonable person might wonder why a menorah, which is key to the Jewish celebration of Hanukkah, and the star-and-crescent, which symbolizes Islam, count as "secular," whereas a Nativity scene counts as "religious." Richard Thompson, president of the Thomas More Law Center, a Michigan group that joined the Catholic mother in filing the suit, says the policy demonstrates "callous indifference to the religious liberty and rights of Christians."

The schools are pointing to judicial precedent. In County of Allegheny v. ACLU of Greater Pittsburgh (1989), the Supreme Court considered what to do about a creche in front of the Allegheny County courthouse, and a Christmas tree displayed beside a menorah outside another city building. The Christmas tree and the menorah were allowed, the creche was not. But, in fact, the Court's distinction was not based on declaring the menorah secular and the creche religious; rather, the Court considered the context in which the symbols were displayed. It ruled that the creche standing alone could be construed as government endorsement of a particular religion, whereas a multiplicity of symbols exhibited together could not be. "When it comes to things in a public school, the court is going to be stricter, there's no question," says Charles Haynes, senior scholar at the First Amendment Center in Arlington, Va. "But I think [the Board of Education] is misreading the Supreme Court decision."

Another problem is the lack of clarity in the Court's religious-freedom jurisprudence. "The Supreme Court has been notorious for its inconstancy in trying to express Establishment Clause principles of law. Basically, it's all over the place," says Pat Korten of the Becket Fund, a Washington, D.C.-based legal organization that defends religious-liberty cases. As a result, different circuit courts interpret the justices' decisions in different ways -- and that's why these Nativity-scene cases keep coming up, year after year. "They've been getting a little better at it in the last year or two," Korten continues, but "there's [still] room enough out there for local ACLU chapters to see if they can press their cases."

Despite this, the pro-creche plaintiffs are likely to prevail in New York, according to several lawyers who specialize in free-speech litigation. "The courts have been very clear that when government gets into the business of deciding what is and isn't religious, they're entangling themselves with religion," says John Whitehead of the Rutherford Institute.

This entanglement puts even well-meaning public officials in a difficult bind at Christmastime. Bureaucrats are not notable for fearlessness, and there is no shortage of secularist Scrooges ready to make trouble for them in court and with the media; your average time- serving Man in the Grey Poly-Blend Suit may figure it's better to ban all religious-tinged speech than to have the ACLU come a-wassailing with a subpoena. First Amendment experts say this response is depressingly common.

It happened this year to Angelo Petrone, the interim public-schools superintendent in Yonkers, N.Y. He sent a memo out in early December instructing teachers to remove all Christmas and Hanukkah-specific decorations from their classrooms. Teachers had to disassemble bulletin boards festooned with children's artwork. Parents -- not one of whom had complained about the holiday decorations -- were outraged. Petrone quickly backtracked, saying (unpersuasively) he had only meant for them to "have sensitivity to the diversity in the district," and to use "common sense."

Petrone demands the metaphysically impossible: You cannot be "sensitive" and "diverse" as contemporary America understands these terms, and simultaneously use common sense. Bill Donohue, head of the Catholic League for Religious and Civil Rights, which is party to the creche lawsuit in New York, has a knack for identifying the contradictions. He points out, for example, the contrast in public schools between tolerance for sexual explicitness and intolerance for the Christian faith, and asks the piquant question: "You can't have Baby Jesus, but you can have a condom on a cucumber?"