Bench Memos

Law & the Courts

The Most Wonderful Time of the Year — for Religious Legal Disputes

A Christmas nativity scene outside a home in the Sleepy Hollow area of Torrance, Calif., December 15, 2015. (Lucy Nicholson/Reuters )

The holiday season has arrived, and along with it comes a cherished annual tradition — legal disputes over religious displays on public property. This year, a New Hampshire town’s refusal to allow a menorah display in a public park gained the most publicity. Similar conflicts arose in other states, including New York and Illinois. These annual fights could be avoided if governmental entities understood the relevant law.

Government representatives often claim that they can allow secular displays while banning religious displays as long as the ban applies to all faiths. This view is incorrect. If a government creates a forum in which some members of the public are allowed to speak, the freedom of speech protected by the First Amendment requires governmental entities to treat religious and secular speakers equally.

In the New Hampshire case, the town allows citizens to utilize a public park for private purposes. However, the town denied a rabbi’s request to participate in that program by displaying a menorah in Memorial Park.  The town administrator explained that one of the reasons for denying the rabbi’s application was that, “the town does not allow the display of any overtly religious symbols on town property.” Various members of the town’s Human Rights Commission indicated that they could justify refusing the rabbi if they applied their ban to all religious displays.

This argument boils down to a claim that a government entity may discriminatorily censor Jewish speech so long as it also discriminates against other religious groups. Fortunately, this position is not legally sound. Prohibiting all religious symbols while continuing to allow secular displays does not alleviate the town’s problem. It exacerbates the constitutional violation by adding more religions to the list of groups whom the town muzzles.

The town’s confusion seems to stem from conflating the First Amendment’s prohibition on the establishment of religion with its protection of the freedom of speech. The town needs to satisfy both provisions, and it cannot satisfy the Free Speech Clause no matter how evenhandedly it silences religious speakers.

Government entities may be correct in their claim that, under the Establishment Clause, if they allow one religious message, they cannot discriminate against other religious messages. However, in response to that problem, the government cannot discriminate against all religious speakers in favor of secular ones. The answer to the problem of discrimination is not more discrimination. Religious speakers, no less than secular speakers, have a First Amendment right to express themselves in public forums.

In Good News Club v. Milford Central School, the Supreme Court held that a public school violated the First Amendment’s free speech clause by opening its facilities to secular speakers and banning religious speakers. The school had adopted a policy allowing after-school events aimed at “instruction in any branch of education, learning, or the arts” as well as any uses “pertaining to the welfare of the community.” However, the school excluded religious groups from participation.

The Supreme Court concluded that the school had created a “limited public forum.” In such a forum, the school could limit speakers to its chosen subject matter, but it could not discriminate based on the speaker’s viewpoints. Without violating the Constitution, the school could limit speakers to discussing “education, learning, or the arts” and exclude groups discussing unrelated topics. But the school could not require speakers to espouse its preferred positions on the permissible subject matters. This includes favoring secular positions over religious ones.

According to the Supreme Court excluding speakers based on their religious message was an example of impressible viewpoint discrimination. The religious group intended to discuss permissible subject matter — they simply wanted to speak from a religious perspective.

The school had maintained that religious viewpoints were qualitatively different than secular ones and could therefore be excluded. The Supreme Court rejected the notion that a speaker’s religious motivation “taints” his speech or makes it less “pure.” The First Amendment did not allow the school to ban religious groups from participating in the program simply because the school preferred secular messages.

Lower courts have applied similar reasoning to menorah displays on government property. In Grossbaum v. Indianapolis-Marion County Building Authority, the Seventh Circuit Court of Appeals held that the Indianapolis-Marion County Building Authority had violated a rabbi’s free speech rights by refusing to allow him to place a menorah in a government building. The government allowed seasonable displays but prohibited religious displays. The court concluded that “the prohibition of the menorah’s message because of its religious perspective was unconstitutional under the First Amendment’s Free Speech Clause.”

The same reasoning applies in the New Hampshire menorah case as well as all of the other cases that arise each year. Allowing citizens to use public property to promote secular messages while excluding religious speakers raises serious concerns under the First Amendment’s Free Speech clause. Religious speakers may not be relegated to second-class status because of their faith.

There may be other relevant legal issues in this case. The Supreme Court’s Establishment Clause jurisprudence is a mess, and hopefully the Court will fix that problem this term. The town claims that it has public safety concerns regarding vandals attacking the menorah. Maybe that claim has merit and maybe it does not. But it is important to separate that analysis from the distinct question of whether a town may categorically ban all religious speakers in favor of secular speakers. It may not.

Governmental claims that they can prohibit the display of menorahs on public property as long as they also prohibit the display of Christmas trees or other Christian symbols are one holiday tradition that Americans ought to retire once and for all.

Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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