SCOTUS Let New York City's Anti-Creche/Pro-Menorah Policy Stand
On February 6, 2006, in "Will SCOTUS use Skoros to straighten out Everson," I explained that "[t]here is a simple reason why post-World War II jurisprudence involving the First Amendment's religious clauses is twisted and tortured: the United States Supreme Court (SCOTUS) made an egregious error in 1947 in ruling that government must be neutral as between religion and irreligion and must not support religion generally and it has not yet corrected itself"; asked, "Will Skoros v. City of New York be the case in which SCOTUS admits and corrects that egregious error?"; and urged people to "pray that it becomes so."
Skoros was exquisitely suitable for SCOTUS reconsideration of Everson. But, secular extremists still constitute a majority there (even though Justice Samuel A. Alito, Jr. replaced former Justice Sandra Day O'Connor), due to poor choices by former Presidents Ford (John Paul Stevens), Reagan (Anthony M. Kennedy) and Bush I (David Souter) and deliberate choices by former President Clinton (Ruth Bader Ginsburg and Stephen Breyer).
So America's highest court declined to review the 2 to 1 ruling of the United States Supreme Court in Skoros that has allowed New York City to ban Nativity scenes in public school Christmas displays, while permitting a Jewish menorah, a Muslim star and crescent and a Christmas tree. New York City defended the policy by arguing that the Jewish and Islamic symbols, displayed on the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, were “secular” symbols, while the nativity scene was “purely religious.” [Note: New York City Mayor Michael Bloomberg, now pondering a race for the presidency as a third-party candidate, vigorously supports this anti-Christian display policy.]
One more secular extremist apparently will have to be replaced on the United States Supreme Court before constitutional fidelity finally is restored.
Justice Chester Straub's dissenting opinion in the Second Circuit was much more in keeping with what America's Founders intended, of course.
Judge Straub noted that the nativity scene or crèche "depicts a historical event and thus, has some non-religious aspects to it." He concluded that the City's "action in defining a menorah and star and crescent as secular, and a crèche as 'purely religious,' is impermissible insofar as it takes positions on divisive religious issues."
Should Martin Luther King Day be eliminated as a national holiday because Dr. King was a Baptist minister and therefore Martin Luther King Day violates the Establishment Clause of the First Amendment?
Of course not! Establishing Martin Luther King Day did not establish Baptism as a national religion, or unduly favor it.
Should creches be banned on public property because Christians believe Jesus was divine as well as human?
Especially in a country that considered itself a Christian country from the beginning. Evidence: John Adams wrote in 1813 that '"[t]he general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity . . . ." and America’s greatest chief justice, John Marshall, proclaimed in 1833: "The American population is entirely Christian, and with us Christianity and Religion are identified. It would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations to it."
Both of America's governing documents, the Articles of Confederation and the Constitution, are dated "in the year of our Lord" (a reference to Jesus).
Judge Straub concluded that "the policy of the New York City Department of Education to arrange for the children to celebrate the holiday season in schools through the use of displays and activities that include religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, but starkly exclude any religious symbols of the Christian holiday of Christmas, fails under the [Constitution], both on its face and as applied."
Judge Straub concluded that the governmental policy and the displays considered in the case "violated the Establishment Clause insofar as a reasonable student observer would perceive a message of endorsement of Judaism and Islam and a reasonable parent observer would perceive a message that Judaism and Islam are favored and that Christianity is disfavored": "My chief disagreement with the majority is as to the 'reasonable observer' in this case. It is my view that we must view the displays and celebrations from the perspective of elementary or secondary school students in the New York City public school system, as well as from the perspective of parents of such students who experience the displays through and with their children and who have knowledge of the history and context of the policy and displays. In failing to examine the displays and celebrations from the perspective of the students, the majority pays only lip service, and indeed, effectively turns a blind eye, to the significant impact of the students' impressionability and youth."
The anti-Christian nature of the New York City public school system display policy was but slightly disguised: Even the Second Circuit majority rejected as "mischaracteriz[ation]" New York City's false argument that the menorah and star and crescent are permissible symbols because they are "secular," while the creche had to be excluded because it was "purely religious."
During a recent interview by Jane Crawford Greenburg, Chief Justice John Roberts expressed his view with respect to the role of the courts:
"Think back to the framers who drafted the Constitution. These were people who literally risked everything to gain the right to govern themselves, certainly risked all their material well-being and risked their lives in the struggle for independence. And the thought that the first thing they would do when they got around to drafting a Constitution would be to say, 'Let's take all the hard issues in our society and let's turn them over to nine unelected people who aren't politically accountable and let them decide,' that would have been the farthest thing from their mind."
With due respect to the Chief Justice, the farthest thing from their mind would have been establishing a government that would be neutral as between religion and irreligion and permit displays on public property of Jewish and Moslem religious symbols but not a Christian religious symbol.
The Thomas More Law Center had petitioned the United States Supreme Court to review the Second Circuit decision, claiming, among other arguments, that the City’s policy was unconstitutional because it showed hostility to Christianity.
Its position: “[T]he Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any.”
Richard Thompson, President and Chief Counsel of the Thomas More Law Center, called the decision another outrageous example of federal courts discriminating against Christians. Said Thompson, "Many federal courts are using the contrived endorsement test to cleanse America of Christianity. This unprincipled test allows judges to impose their ideological views under the pretext of constitutional interpretation. Thus, the majority opinion says it is legitimate to discriminate against Christians in the largest public school system in the country, with over one million students enrolled in its 1200 public schools and programs. This should be a wake-up call for Christians across this nation."
If Christians across America treat the Supreme Court's denial of certiorari in Skoros as a wake-up call, then Mayor Bloomberg and Senate Democrats otherwise disinclined to confirm strict constructionist judges, especially to the United States Supreme Court, may wake up too!
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.