Imagine: A Sleigh Full of Toys and Saint Nicholas Too

That is how I refer to Justice O'Connor's approach to Nativity displays in public parks under her infamous "endorsement" test. In other words, according to the Court, serving as a National Board of Interior Decorators, a Nativity display is probably okay so long as the display includes "a sleigh full of toys and Saint Nicholas too." Or a least a few plastic elves and perhaps a "talking wishing well."

County of Allegheny is an interesting case because we see two of the Court's EC tests (the third, of course, is Lemon/advance or inhibit):

1. the Lemon/endorsement test--i.e. a Christmas display is unconstitutional if a "reasonable observer" (who's that?) would view the display as conveying a message of endorsement of religion, "a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community."(p. 4)

When you see a Cinco de Mayo display in a public school or public park, do you perceive the "message" as one of inclusion or one of intolerance? In other words, is the display endorsing Mexican-Americans as favored members of the community and non-Mexicans as disfavored members of the community? Or is the display merely a recognition that a subgroup of our community is celebrating a holiday and the government is merely being inclusive and acknowledging that fact? If the Cinco de Mayo display is merely an inclusive recognition of a holiday that is important to a subgroup in the community, how is a Nativity scene (without elves and wishing wells) somehow an intolerant attack on non-Christians? By the way, here is a recent editorial on a public school's decision to censor several anglo-American students for wearing American flag t-shirts on Cinco de Mayo. Here is an excerpt:

On May 5, five students at Live Oak High School in Morgan Hill, Calif., were sent home for wearing clothing featuring the American flag. Their offense: trespassing on Mexican heritage during Cinco de Mayo. Administrators called the flag-wearing "incendiary" and likely to cause violence. The school district overrode the decision, and the boys were allowed to return to school. In response yesterday, about 200 students staged a walkout carrying Mexican flags.

The government often puts up a display not so much to recognize the underlying message of the display, but rather merely to recognize that a subgroup in the community is celebrating something that is special to them. As Kimberly Colby has suggested, when New York City put up a memorial plaque commemorating John Lennon and his song "Imagine," the City was not thereby endorsing his lyrics imagining the splendor of "no religion too." Was it? Or do you believe that the courts should enjoin NYC from displaying the John Lennon plaque under the EC and the Endorsement Test? Here is a link describing the Lennon Strawberry Fields/Imagine Memorial.



2. the coercion test--as Kenendy states it: "government may not coerce anyone to support or participate in any religion or its exercise." 

These are very different tests, the first one enforces a structural limitation on government power to "endorse" a religious holiday, the latter one protects a liberty interest to be free from forced participation in a religious ceremony or practice.

The former one often invalidates even a passive display that is perceived to endorse religion, the latter would almost never invalidate a mere display (since averting the eyes is almost always an option for those who take offense at the display).

3. Now consider how the original Constitution has "evolved" by judicial decree:

The Original, Enduring Constitution

Congress shall make no law respecting an establishment of religion


The Living, Breathing, Created Constitution

[Neither] Congress [nor state or local government] shall [put up any public display endorsing religion]

What do you think? Who should decide on the decorating of local parks and buildings? The local officials elected to make local decisions? Or the Supreme Court of the United States?