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December's search for common ground begins on the public square
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Some Americans have a strange way of celebrating the season of peace and good will. No sooner is the tree lit in Rockefeller Center than conflicts break out over Nativity scenes on public property.

From Lafayette, Ind., to Lexington, Mass., citizens are fighting and protesting this month over displays depicting the birth of the man known to Christians as the "Prince of Peace."

As with many church-state debates, these fights over creches are usually dominated by people on opposite ends of the spectrum.

At one extreme are those who fight to keep all religious symbols off public property. At the opposite pole are people who want the government to promote their religion over others by erecting a display with taxpayer money.

Town officials in Lafayette and Lexington have tried to resolve the issue by banning all displays on city land. They may be able to do that under current law, as long as the ban is content neutral and applies to all displays.

Are there any alternatives?

Another solution would be for the town to put up its own holiday display. But the courts have ruled that if these "official" decorations include a creche, it must be surrounded with various other symbols — such as reindeer and Santa — in order for the whole thing to be classified as a "secular display."

This approach doesn't appear to satisfy anyone. Many Christians resent having their sacred symbol transformed into a secular image, and many non-Christians continue to view such assemblages as religious displays paid for with their tax dollars.

Still another possibility would be for the towns to allow community groups to erect their own creches on public property, with expenses paid by private funds. That's exactly what Christian groups are asking for in both Lafayette and Lexington.

However, to allow one display is to open the door to all. Many elected officials would rather have no displays than be forced to allow groups they find offensive to put one up in front of the courthouse or city hall.

Faced with these options, some Christian groups have taken a different tack. A church located just across from the Lexington town green (where displays have been banned) has offered to place the creche on its lawn. And a group of pastors in Lafayette have voiced support for a similar solution there.

Since this month also marks the anniversary of the day in 1791 that the First Amendment was added to the Constitution — Dec. 15, to be exact — it's worth asking what the framers of the Bill of Rights might think about this fight.

That's hard to say, of course, since much has changed in the intervening centuries, including Supreme Court rulings that make the First Amendment applicable to the states by way of the Fourteenth Amendment.

But surely James Madison would be shocked by any interpretation of the First Amendment that entirely banned religion from public places.

At the same time, there's little doubt that he would also see any attempt by government to promote a particular religion as a violation of religious liberty.

I like to think that Madison would endorse a "First Amendment public square" where any and all groups could put up displays on public property in December or at any other time of year. Yes, it might be a little messy. But democracy is a messy arrangement.

As unfortunate as these disputes over creches may be, it's important to keep them in perspective. If this is all we fight about during the holiday season, we should count our blessings. After all, in many parts of the world, religious differences are still settled by violence, not by lawyers and judges.

That's why as we celebrate our various "articles of faith" this month, we should pause on December 15 to give thank for our "articles of peace" found in the first 16 words of the First Amendment.


Supreme Court turns away dispute over menorah in city plaza

On Nov. 29, Justice Stevens vacated lower court's order that would have prevented Hanukkah display in Cincinnati's Fountain Square. 12.17.02

1st Circuit: R.I. holiday display didn't violate rights
Appeals court says resident who challenged City Hall lawn decorations was not constitutionally harmed by them. 07.07.05

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