Here is what I have suggested:
Rather than the Lemon/endorsement test, or any similar separationist structural test, the Court should analyze Establishment Clause litigation involving passive, state-sanctioned religious displays by asking three questions. First, has the religious display under attack deprived anyone of any liberty interest under the incorporated Establishment Clause? Second, would enjoining the display amount to a heckler’s veto allowing one group of citizens the power to censor what another group of citizens-the willing audience for the display—is allowed to see? Third, would enjoining the display make the public square more or less neutral; in other words, would the injunction result in a public square that reflects the religious pluralism and cultural diversity of the local community, or would it result in a strictly secular public square that is a poor reflection of the local community?Under this approach, a nativity display in a public park, with or without reindeer and talking wishing wells, would almost certainly be constitutional under the test of liberty and pluralism. Such a harmless, passive display does not deprive anyone of any realistic liberty interest. Offended observers are not required to worship the display or even to look at it. They can easily avoid it, either by averting their eyes or by altering their path by a few steps away from the site of the display.The nativity display is best understood as neither a state-sanctioned assertion of the truth of “the Christian belief in the Incarnation,”[1] nor as a state-sanctioned secularization of the Incarnation.[2] Rather, it is best understood as simply an acknowledgement by the state that one of many valued subgroups in the community is celebrating a religious holiday. In other words, by displaying the nativity scene the state is not asserting the truth of Christianity, but is merely recognizing that some valued citizens are celebrating what they believe to be a supernatural miracle and a religious truth.[3]Moreover, since the display is only one of many state-sanctioned messages in the public culture, it should not be perceived as classifying citizens as insiders and outsiders. Rather, it sends a message of inclusion, not exclusion, by reflecting the idea that there are no outsiders in the political community, only many different groups of valued insiders. Indeed, if offended observers are allowed to cleanse religious displays from the public culture, the message to religious subgroups in the community is one of secular triumphalism, not neutrality and pluralism. As Michael McConnell has observed:If the aspects of culture controlled by the government (public spaces, public institutions) exactly mirrored the culture as a whole, then the influence and effect of government involvement would be nil: the religious life of the people would be precisely the way it would be if the government were absent from the cultural sphere. In a pluralistic culture, this is the best of the possible understandings of “neutrality,” since it will lead to a broadly inclusive public sphere, in which the public is presented a wide variety of perspectives, religious ones included. If a city displays many different cultural symbols during the course of the year, a nativity scene at Christmas or a menorah at Hanukah is likely to be perceived as an expression of pluralism rather than as an exercise in Christian or Jewish triumphalism.[4]Such a result is also faithful to the Court’s own theory of incorporation of the Bill of Rights, because it takes the question of deprivations of liberty seriously and does not allow the Establishment Clause to be used by one group of citizens to deny a First Amendment liberty to another group of citizens in the name of an extra-constitutional principle, strict separation of church and state. Our Nation is neither a Christian Nation, nor a Secular Nation; it is a Pluralistic Nation comprising a rich stew of valued subgroups of citizens of all religions, ethnic origins, and ideological perspectives. Rather than a religiously naked public culture, the public square should be clothed in a coat of many colors representing the rich heterogeneity of the local community.
[1] Douglas Laycock, Government-Sponsored Religious Displays: Transparent Rationalizations and Expedient Post-Modernism, 61 Case Western Reserve L. Rev. 1211, 1213 (2011). Prof. Laycock asserts that the only serious interpretation of a nativity display is that it represents a governmental statement “that Christianity is true.” Id. at 1211, 1213.[2] See id. at 1212.[3] There is an important difference between the state recognizing a religious truth and the state merely acknowledging that there are those in the community who are celebrating what they believe to be a religious truth.
[4] McConnell, supra note 104, at 193.
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