Want to save a religious nativity creche or some other faith-based display when the holiday comes? Bring in a team of lawyers, distort the constitutional issues involved and, oh yeah, let Santa and Frosty help out!

U.S. District Court has ruled that Jersey City, N.J. officials may use a modified Christmas display which includes a Christian nativity creche, and employs plastic snow men, Santas and other holiday symbols in order to "secularize" the presentations and render it constitutionally acceptable. In a 2-1 decision, the judges declared that mixing religious and secular icons did not amount to an endorsement of any religious belief. The ruling is the latest in a long series of legal maneuvers going back to 1995 when the American Civil Liberties Union, acting on complaints from citizens, filed suit arguing that Jersey City's Christmas display violated the First Amendment separation of government and religion. The seasonal presentation featured a Christian nativity scene and a Jewish menorah erected in front of the City Hall.

   In July, 1997, the United States Supreme Court refused to hear Jersey City's appeal on the case, letting standa ruling against the argument that the display was a celebration of "cultural diversity." The Third Circuit had found that the "celebration of more than one religion cannot magically transform a government endorsement of religion into a 'secular celebration of diversity and pluralism.'"

   Jersey City officials then attempted to "secularize" the holiday scene by putting the Christian nativity creche and the Jewish menorah in new company. A plastic Santa Claus along with Frosty the Snowman were called in to help Baby Jesus pass constitutional muster, along with a wooden sleigh. The ACLU argued that "however confusing the presence of a snowman in Bethlehem may be from a canonical perspective, a reasonable observer ... would invariable characterize (Frosty, Santa and the sleigh) for what they are -- attempts at evasion of constitutional prohibitions through superficial secular tokenism."

   The high court's refusal to hear the Jersey City case sent the matter back to U.S. District Judge Dickinson R. Debevoisie in Newark. In December, 1997, he also ruled against the "secularized display," noting: "I find that the display of a creche and menorah on the lawn in front of City Hall violated the Establishment Clause notwithstanding the addition of secular items."

   What exactly were city officials trying to do? It was clear that since Jersey City officials had originally selected two religious symbols for the seasonal display, the presentation had little to do with "cultural diversity," or even creating a theme which might encourage shopping or getting into the holiday mood. When admonished with legal action, they then proceeded to instigate a shabby and transparent ruse to "secularize" the religious symbols by reluctantly adding holiday items -- Frosty, Santa and the sleigh -- which they had not even employed in the first place.

   But Jersey City Mayor Bret Schundler remain defiant; he also clearly saw the legal issue for what is was, namely, a question of the role of religious faith and symbolism in the public square. He termed the court actions an "example of outright discrimination against religion," adding "If they (plaintiffs) had their way, they would get 'In God We Trust' off our money." That Christmas, instead of the annual lighting of the holiday Christmas tree -- which was not a point of contention in the original suit -- Schundler announced that the city would instead hold a ceremony focusing on the American Civil Liberties Union.

   Even more revealing was the City's argument when first confronted about the religious display. There was no question that this was NOT a religious presentation or issue. A press release from the City of Jersey City (August 7, 1996) criticized the arguments being presented before the Third Circuit Court of Appeals, denouncing the move of having the religious displays "accompanied by a plastic Santa Claus and Snowman to 'desacrilize (sic) the holy.'" Schundler declared, "Jersey City should not have to censor the display of certain symbols just because they have religious significance."

   A rally hosted by Mayor Schundler and attended by over 400 supporters, including many religious groups, also showed the religious nature of the controversy. Banners from organizations such as the Knights of Columbus dotted the audience, along with placards bearing messages like "What Happened to Freedom of Religion?" In lieu of the nativity scene and the Christmas tree lighting ceremony, the City erected a sign which declared: "Due to a lawsuit by the ACLU our traditional menorah and creche may not be displayed this year. We are fighting in court to be able to return these beautiful displays to you next year. Seasons Greetings! Mayor Bret Schundler."

   A second sign mounted in front of City Hall read: "As the Constitution of the State of New Jersey reads, let us remain grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and let us continue looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations."

   Stepping in to help Jersey City in its defense of public religious sponsorship was the Beckett Fund, a "religious liberty" group active in the fight against state-church separation. Beckett has intervened in numerous other First Amendment cases, and is also helping the federal government in the case involving Cincinnati attorney Richard Ganulin who is challenging the constitutionality of having Christmas declared a federal holiday.

   The 2-1 Third Circuit Court of Appeals Ruling found that the inclusion of a sufficient quantity of secular items --Kwanza icons, snowmen and other holiday kitsch -- dilutes any religious items such as a nativity creche. Judge Samuel Alito wrote that "government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine." The modified version of the display -- one that may still irritate Mayor Schundler and more hard-line religious supporters -- does not presumably constitute, for a "reasonable observer," any endorsement of religion. According to the First Amendment Center, Alito sees the creche-Santa-Kwanza-Menorah-Frosty display as representing "pluralism and freedom to choose one's own beliefs."

   Dissenting was Third Circuit Judge Richard L. Nygaard who warned, "the addition of a few small token secular objects is not enough to constitutionally legitimate the modified display." He saw the issue as "whether simply adding Kwanzaa symbols to the tree and placing Frosty and Santa, 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."

   The Third Circuit ruling could have serious consequences for those fighting public endorsements of religious faith, especially during major holidays. In New England, American Atheists Regional Director Gil Lawrence Amancio has protested a religious display in Somerset, Mass. There, local officials are trying to 'secularize' a nativity creche in front of the Town Hall by including an enormous plastic Santa Claus figure which critics are dubbing "Santazilla."

   For governments and church/temple groups, though, recent court decisions are beginning to resemble instructions manuals on how religious displays may be maintained in the public square (even at taxpayer expense) by simply modifying their appearance and calling upon the services of holiday kitsch fantasy characters. Another problem is that religious symbols are now being redefined as "cultural" artifacts. Eric Treene, attorney coordinated for the Beckett Fund -- an explicit "religious liberty" group -- employed this disingenuous terminology in commenting on the latest Jersey City decision. "We have argued all along that Mayor Bret Schundler has done a wonderful job of celebrating the culture and diversity of Jersey City... The city has sponsored a variety of cultural offerings including a Hindu Festival of Lights parade and an African-American arts festival." But after playing the "culture" card, Treene added, "The mayor deeply believes that the city should not send a message to religious people that they should stay home."

   Just as government and faith groups have attempted to salvage religious displays by disingenuously shifting the context of their presentation, they have also endeavored to argue that the displays in question are no longer strictly religious (especially when confronted with First Amendment criteria), but rather "ethnic" or "cultural." Can they have it both ways? For now, anyway, they can.

[text only]