Paul L. Caron

Sunday, December 19, 2021

Helfand: Is A Christmas Tree Or A Menorah A Religious Symbol?

The Forward op-ed:  Is the Christmas Tree a Religious Symbol? What About a Menorah?,  by Michael A. Helfand (Pepperdine):

America in the midst of our holiday season — a time for family, rest and hotly contested litigation over religious displays on government property. ...

In order for a court to find a First Amendment violation, the government needs to be the one erecting the religious symbol or hosting the event, and the event or symbol needs to actually constitute a prohibited merging of church and state.

Figuring out when an event is actually being run by a government entity or a government official can be tricky enough. Governments sometimes rent out space on equal terms to anyone interested. In those cases, the religious symbol isn’t attributable to the state. But if officials provide space and then exercise control over the event, that starts to look very different.

But more fundamentally, what does a prohibited merging of church and state even mean or look like?

In a decision issued last week, a federal district court issued an opinion in favor of the school. The court did so not because it didn’t think the school was involved in the event. To the contrary, the court found that the principal and school superintendent exercised control over the event.

But the court concluded that the Christmas tree is not a religious symbol, relying on a famous 1989 Supreme Court case which stated “[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.” And, “[i]n light of the Supreme Court’s definitive statement on the issue,” the district court held there could be no constitutional problem if the event didn’t actually include a religious symbol.

Did the district court get this one right? ...

[I]t’s hard not to end with the following relatively straightforward point. Notwithstanding all these contextual niceties and jurisprudential trends, it would be nice to think that — as we desperately seek ways to join together after so long apart — schools could find ways to make sure their students and their families all felt included in communal gatherings. After all we’ve been through, is it really so hard to make space for a 6 foot inflatable menorah?

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