Appellate panel OKs N.J. city's modified holiday display

By Jeremy Leaming

A federal appeals court panel has ruled that a revised holiday display in front of a government building in Jersey City, N.J., does pass constitutional muster.

In 1995 the state affiliate of the American Civil Liberties Union, representing a group of citizens, sued the city arguing that a holiday display in front of City Hall violated the separation of church and state.

A U.S. District Court barred Jersey City officials from maintaining the display that included a menorah and a Christmas tree, ruling that the display did flout the First Amendment's establishment clause. After that ruling, city officials erected a modified holiday display that included a crèche, menorah, Christmas tree and large plastic figures of Santa Claus and Frosty the Snowman. The new display also featured Kwanzaa symbols on the Christmas tree. Eventually, the federal district court also found that display to be constitutionally suspect and ordered the city to take it down.

A panel for the 3rd U.S. Circuit Court of Appeals released a decision Feb. 17 in favor of the city and its modified holiday display. Voting 2-1, the panel found that Jersey City officials could not be prevented from erecting the modified display in the future.

Citing U.S. Supreme Court decisions involving government-sponsored holiday displays, Judge Samuel Alito ruled that "government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine."

According to Alito, Jersey City's modified display with various religious and secular symbols could not amount to an endorsement of Christianity or any other organized religion. Alito, furthermore, dismissed the New Jersey ACLU's argument that the city's original, unconstitutional holiday display had tainted the modified one.

"The Supreme Court's decisions regarding holiday displays have been marked by fine line-drawing, and therefore it is not easy to determine whether particular displays satisfy the Court's standards," Alito wrote. "Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials' bad faith."

Alito concluded that a reasonable observer could not see an endorsement of religion in the revised display. Instead, again citing high court precedent, Alito dubbed the message as one of "pluralism and freedom to choose one's own beliefs."

Judge Richard L. Nygaard, who dissented from the appeals panel majority, wrote, "the addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

According to Nygaard, the real question before the appeals panel should have been "whether simply adding Kwanzaa symbols to the tree and placing Frosty (a secular symbol of Christmas), and Santa (a once-religious symbol -- St. Nicholas -- now quite secularized), and a sleigh in the display sufficiently changed the display's context so as to negate the message that was conveyed by the original display," which was found unconstitutional.

The Becket Fund, a Washington, D.C.-based religious-liberty group that represented Jersey City officials in the case, lauded the appeals court decision.

"We have argued all along that Mayor Bret Schundler has done a wonderful job of celebrating the culture and diversity of Jersey City," Eric Treene, litigation coordinator for the Becket Fund, said. "The city has sponsored a variety of cultural offerings including a Hindu Festival of Lights parade and an African-American arts festival. The mayor deeply believes that the city should not send a message to religious people that they should stay at home."

Ronald Chen, the ACLU attorney who argued against the revised display, said he would seek a review of the case by the full 3rd Circuit.

Treene, however, called Alito's opinion "scholarly and thorough," and said he hoped it was the "last judicial determination" of the case.