Nativity scenes - Establishment or Free Exercise infringement?

[Pharon]

From the 2nd Amendment thread - thought it deserved its own discussion:
25 years ago, no one would have believed there would ever be issues with Nativiry scenes on public property
I'm sure plenty of people had a problem with it. That the court's didn't listen is a different matter.
And the Nativity scene issue is actually a protection of a First Amendment right, not an infringement of one.
Well, the anti-Nativity scene people see it as a protection of their rights, the pro-Nativity scene people see it as an infringement of theirs (or just say it's plain stupid).
Stax, this is a different subject for a different thread, but you are confusing the issue of the establishment clause of the First Amendment with somehow infringing on a First Amendment right of free speech.
No. I understand perfectly how the Court approaches it. But I'm saying anti-religious display people claim it infringes upon the establishment clause where pro-religious display people make the claim that it infringes on speech and perhaps even goes so far as to tip into the other aspect of religious protections of the exercise clause.
The infringement on free speech argument fails because there is no infringement on any person's right to put up whatever display he wants on his own private land. The issue is the use of public land, which is not a free speech issue, but an establishment issue. [/thread digression]

[Pharon]

I can see both sides of this issue, but I think it's a stretch to assert that allowing a church group to put a Nativity scene on a public lawn during the Christmas holiday is somehow the government endorsing or establishing a religion. As long as no other group is denied access to that same land for their own religious (or non-religious) holiday use, there is no Constitutional conflict.

[Archetype]

One could argue in favour of it as a cultural artifact, that it's historically a part of America. It doesn't propose necessarily anything pertaining to Christianity, there's no direct message of "Jesus is our savior." However, it is a pertinent symbol of a certain religion, and I think public consciousness says that it does put Christianity on a pedestal.

I don't know if anybody has heard of it, but there's a "god exists" campaign going across Canada right now on buses and trains (there was a similar atheist campaign down east that was actually banned in a couple provinces, I don't know if the "god exists" campaign has reached there or not). It's strange because it's an ad campaign on public property, and I wonder what people would say if the nativity scene were paid for by a private entity in a similar manner.

[Insomniac]

Yeah, I don't want the 10 Commandments at a courthouse, for instance, but if the owner of the local mall wants to put it up, I don't have a problem with it.

Same with a Nativity scene. There are enough churches with land available to do it. Government property really shouldn't be used for that sort of thing.

[Septic_Porpoise]

i think that it also depends upon the local population. yeah, separation of church and state is important, but when you live in a community where 99% of the population is christian and you have the odd one or two families that aren't, then there really shouldn't be a problem with having a nativity scene at city hall or the fire station. everything in that town will already have a christian slant to it, and if the non-christian families don't understand that then they probably aren't all that smart anyways. especially when christmas is so entrenched into american society. plenty of folks that aren't overly religious or even christian at all celebrate the holiday, or at least benefit from it existing. they may not celebrate the christian beliefs portion of it, but it's there. trying to take out a widely recognized and accepted part of christmas is not nice.

[Yelram]

I can see both sides of this issue, but I think it's a stretch to assert that allowing a church group to put a Nativity scene on a public lawn during the Christmas holiday is somehow the government endorsing or establishing a religion. As long as no other group is denied access to that same land for their own religious (or non-religious) holiday use, there is no Constitutional conflict.

The way it is right now, atheism wins over any religion, hands down(at least once it gets to the courts). No religion is endorsed before any religion.

[Pharon]

Atheism (there is no god) is not the same thing as secularism (separation of church and state). HUGE difference.

I know of not one single case in the courts that ruled in favor of atheism.

[Yelram]

Atheism (there is no god) is not the same thing as secularism (separation of church and state). HUGE difference.

I know of not one single case in the courts that ruled in favor of atheism.
Ummm, how is there a difference? The people that want church, and religion removed from public interaction tend to be atheists. Just because they use a different interpretation to justify their actions, doesnt make them any less atheist, or any less supported by the judicial system. I realize that the stated intent of those two things may be different, but they certainly have more common ground, than not. And the atheists seem to call them "successes".

http://www.atheists.org/Atheist_Director_Wins_Creche_Case
http://atheismexposed.tripod.com/atheist_successes.htm

FREEDOM FROM RELIGION FOUNDATION" The FFRF is unrelenting in its mission to free America of Religion. They consistently manipulate the Constitution as their weapon of choice. As their web site promulgates, they have been brutally successful and have no intention of stopping their obsessive pursuit.
MAJOR SUCCESSES


Winning the first federal lawsuit challenging direct funding by the government of a faith-based agency
Overturning a state Good Friday holiday
Winning a lawsuit barring direct taxpayer subsidy of religious schools
Removing Ten Commandments monuments and crosses from public land
Halting the Post Office from issuing religious cancellations
Ending 51 years of illegal bible instruction in public schools

Foundation complaints have:


Halted prayer at public institutions, and public financing of nativity pageants and Easter service
Stopped direct subsidy to religious schools
Stopped Job Corps trainees from being assigned to work on a Catholic shrine
Ended a 122-year abuse of commencement prayers at a Top Ten University
Declared unconstitutional the creation of a state post to "assist clergy"

<http://www.ffrf.org/legal/ (http://www.ffrf.org/legal/)> (18 February, 2009)
OTHER SUCCESSES
- University Graduation Invocations Ended at Top Ten University (http://atheismexposed.tripod.com/atheist_successes.htm#graduation)
- Prayers Stopped at Public Institutions (http://atheismexposed.tripod.com/atheist_successes.htm#prayers)
- Public Sponsorship of Nativity Pageant Halted (http://atheismexposed.tripod.com/atheist_successes.htm#nativity)
- Crosses Downed from Public Land (http://atheismexposed.tripod.com/atheist_successes.htm#crosses)
- Abuse by Preacher Exposed (http://atheismexposed.tripod.com/atheist_successes.htm#preacher)
- City Sponsorship of Knights of Columbus Signs Ended (http://atheismexposed.tripod.com/atheist_successes.htm#knights)
- Ethics Probe Called for Preaching Governor (http://atheismexposed.tripod.com/atheist_successes.htm#probe)
- Proselytizing Crossing Guard Fired (http://atheismexposed.tripod.com/atheist_successes.htm#guard)
- Post Office/Catholic Entanglement Ended (http://atheismexposed.tripod.com/atheist_successes.htm#postoffice)
- De Facto Sports Chaplaincy Stopped (http://atheismexposed.tripod.com/atheist_successes.htm#chaplaincy)
- School Boy Scout Subsidy Stopped (http://atheismexposed.tripod.com/atheist_successes.htm#bsa)
- Bible Proclamation Rescinded (http://atheismexposed.tripod.com/atheist_successes.htm#bible)
- Illegal Public Help Halted for "Our Lady of the Rockies" (http://atheismexposed.tripod.com/atheist_successes.htm#rockies)
- Creationism Removed from City Zoo (http://atheismexposed.tripod.com/atheist_successes.htm#zoo)
- Discount for Catholics Ended (http://atheismexposed.tripod.com/atheist_successes.htm#discount)
- Red Rocks Easter Service Subsidy Ended (http://atheismexposed.tripod.com/atheist_successes.htm#redrocks)
- Nativity Scene Moved Off Government Land (http://atheismexposed.tripod.com/atheist_successes.htm#nativitymoved)
- Ten Commandments Monuments Moved from Public Property (http://atheismexposed.tripod.com/atheist_successes.htm#monuments)
- Religion Removed at Playground (http://atheismexposed.tripod.com/atheist_successes.htm#playground)

[Insomniac]

A good rule of thumb in these sorts of things is whether you'd let Scientologists do it. If not, Christians probably shouldn't be doing it either.

Even in Clearwater, Florida, I don't want them putting DC-8s on public land.

[Pharon]

Ummm, how is there a difference? The people that want church, and religion removed from public interaction tend to be atheists. Just because they use a different interpretation to justify their actions, doesnt make them any less atheist, or any less supported by the judicial system. I realize that the stated intent of those two things may be different, but they certainly have more common ground, than not. And the atheists seem to call them "successes".
I told you what the difference was. A ruling supporting atheism would be if a group was allowed to put a banner on a public lawn that says "There is no such thing as god" and was upheld by the Courts. That would be just as much a violation of the Establishment Clause as a Nativity scene would be, assuming all groups do not get equal access.

Secularism is simply the idea that the government takes no position on religion (or anti-religion) whatsoever.

Not taking a position, or taking a neutral position, with respect to the existence of God, is not the same thing as saying there is no God.

Of course atheists are in support of any secular ruling. But that doesn't make secular rulings atheistic in nature. Not by a long shot.

[redking193]

A government merely allowing a group to use public land does not constitute that Government's endorsement of the group's message. Otherwise Skokie, Illinois could be said to have endorsed the infamous Nazi march. Same goes for all the cities the Westboro Baptist nutjobs protested soldier's funerals in.

Allowing a person or a group of people space to express their beliefs does not pass judgement on the rightness or wrongness of those beliefs, merely that they should have the freedom to express them. If a city says: Nativity scenes are allowed, Kwanza displays are forbidden, THAT is a violation of the constitution because it favors one religion over another, but giving people of all faiths the opportunity to use the public square should be constitutional. It does not discriminate, and actually sends the message that all faiths are equal, and all have the same rights.

[Stax]

A government merely allowing a group to use public land does not constitute that Government's endorsement of the group's message. Otherwise Skokie, Illinois could be said to have endorsed the infamous Nazi march. Same goes for all the cities the Westboro Baptist nutjobs protested soldier's funerals in.

Allowing a person or a group of people space to express their beliefs does not pass judgement on the rightness or wrongness of those beliefs, merely that they should have the freedom to express them. If a city says: Nativity scenes are allowed, Kwanza displays are forbidden, THAT is a violation of the constitution because it favors one religion over another, but giving people of all faiths the opportunity to use the public square should be constitutional. It does not discriminate, and actually sends the message that all faiths are equal, and all have the same rights.

Except that it is embracing a religion because it is an active action. Things like allowing Klan marches or whatever isn't embracing them, it's simply not going out of your way to stop them (because they have just as much a right). But if the state went above and beyond to put up a display honoring the Westboro Church or whatever? That would be different.

[Septic_Porpoise]

Except that it is embracing a religion because it is an active action. Things like allowing Klan marches or whatever isn't embracing them, it's simply not going out of your way to stop them (because they have just as much a right). But if the state went above and beyond to put up a display honoring the Westboro Church or whatever? That would be different.

would putting up a yearly christmas display that is basically part of american heritage be considered going above and beyond?

[Pharon]

Except that it is embracing a religion because it is an active action. Things like allowing Klan marches or whatever isn't embracing them, it's simply not going out of your way to stop them (because they have just as much a right). But if the state went above and beyond to put up a display honoring the Westboro Church or whatever? That would be different.
Allowing a church group to put a Nativity scene on a public lawn is no more "active" than allowing a Klan march to happen. It's not like the Nativity pieces are stored at City Hall and then the mayor and his staff put them out during Christmas week.

[Okie Medicvet]

Every year on one of our main st blocks someone 'anonymously' puts up an electrical display that could be said to bear a strikcing resemble to what could be called a nativity scene. Also, on our courthouse lawn, there is a marble block with the words of the ten commandments on them How did we get away with it? Well, it was paid for by private funds, and since it had the Mayflower Compact on the other side, it was not a religious but a 'historical' monument.

[Stax]

Allowing a church group to put a Nativity scene on a public lawn is no more "active" than allowing a Klan march to happen. It's not like the Nativity pieces are stored at City Hall and then the mayor and his staff put them out during Christmas week.

Yes it is. You have an absolute right to publically state your message, which is what all that Westboro crap is. You do not have an absolute right to stick symbols of a particular religion onto public ground as a display. The state/city/whatever is giving you special permission to do that, and whether or not any religion could get such permission that is rather clearly establishing a particular religion.

[Pharon]

Yes it is. You have an absolute right to publically state your message, which is what all that Westboro crap is. You do not have an absolute right to stick symbols of a particular religion onto public ground as a display. The state/city/whatever is giving you special permission to do that, and whether or not any religion could get such permission that is rather clearly establishing a particular religion.
No, it isn't. As long as no religion (or non-religion) is given preference over another, there is no establishment conflict. The government can stay neutral both by prohibiting everyone who wants to put something there OR by allowing everyone who wants to put something there.

[Stax]

No, it isn't. As long as no religion (or non-religion) is given preference over another, there is no establishment conflict. The government can stay neutral both by prohibiting everyone who wants to put something there OR by allowing everyone who wants to put something there.

You are establishing religion whether or not you put every display out there or just one. It's just a question of how many you are establishing. In Everson v. Board of Education:

Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

Plus, obviously, you can't ever put up an atheist display of religious celebration, really.

[Septic_Porpoise]

Plus, obviously, you can't ever put up an atheist display of religious celebration, really.

wouldn't that be a hindrance created by that particular religion (athiesm) and no one elses fault? they dicked themselves.

[Pharon]

You are establishing religion whether or not you put every display out there or just one. It's just a question of how many you are establishing.
This wouldn't be an example of passing a law that aids all religions. It would be showing non-preferential treatment to any and all groups (religious and non-religious) with respect to putting a display on a public lawn. It's a permitting issue -- one that would not exclude any group for religious or anti-religious reasons.

Plus, obviously, you can't ever put up an atheist display of religious celebration, really.
As for atheistic displays, they wouldn't be religious in nature, obviously. But as long as they are not prohibited from the same right to speech as anyone else, there is no conflict.

[Stax]

wouldn't that be a hindrance created by that particular religion (athiesm) and no one elses fault? they dicked themselves.

That point was secondary, just going at the fact that you will never see a truly universal religious display. I don't think we have any government buildings with lawns big enough to do that.

[Stax]

This wouldn't be an example of passing a law that aids all religions. It would be showing non-preferential treatment to any and all groups (religious and non-religious) with respect to putting a display on a public lawn. It's a permitting issue -- one that would not exclude any group for religious or non-religious reasons.

As for atheistic displays, they wouldn't be religious in nature, obviously. But as long as they are not prohibited from the same right to speech as anyone else, there is no conflict.

Establishing is establishing whether you do it equally or not. Shouldn't school vouchers and other government spending towards religious schools and such be a clear and obvious non-issue for the Courts if, as you claim, just so long as every religion has an equal chance for aid (as they would under any of these kinds of systems)? Except they aren't, they get routinely knocked down.

[Pharon]

Establishing is establishing whether you do it equally or not.
You're missing the point. It's not "establishing" as long as you're remaining neutral with respect to the religion question. And you can ONLY do that if you treat non or anti-religious groups the exact same way.

[Stax]

You're missing the point. It's not "establishing" as long as you're remaining neutral with respect to the religion question. And you can ONLY do that if you treat non or anti-religious groups the exact same way.

Putting up a Christian display establishes the Christian religion whether or not you put up a Jewish, Muslim, Hindu, Kwanzaaneese, and Flying-Spaghetti-Monsterism one as well.

[Pharon]

Putting up a Christian display establishes the Christian religion whether or not you put up a Jewish, Muslim, Hindu, Kwanzaaneese, and Flying-Spaghetti-Monsterism one as well.
Putting up a display doesn't "establish" ANY religion. But in order to not advance or inhibit one religion over another (via the Lemon test requirement), you need to allow requests not only from all denominations who want to use the space, but also anti-religious groups. Only under those circumstances do you satisfy the Constitutional requirement.

[Stax]

Putting up a display doesn't "establish" ANY religion. But in order to not advance or inhibit one religion over another (via the Lemon test requirement), you need to allow requests not only from all denominations who want to use the space, but also anti-religious groups. Only under those circumstances do you satisfy the Constitutional requirement.

The explain the Everson or even the Lemon decisions to me. The spending programs overturned (vouchers in Everson, paying for secular services like teacher salary in Lemon) were not, AFAIK, limited to Catholic schools. So long as the chance was open to all schools of all religious backgrounds (under your claim of what the establishment clause is) shouldn't those policies be fine?

[Genius]

I don't understand all of this "HEY, LOOK AT OUR MESSIAH WHEN HE WAS AN INFANT" nonsense anyway. If nativity scenes are referred to anywhere in the scripture, I'm not aware of it.

[Stax]

The birth of Christ was probably described in the part where they described the birth of Christ.

[Genius]

I was talking about the part where it says, "Thou shalt glorify the birth of thy savior with tacky plastic figurines." I missed that part.

[Septic_Porpoise]

there is a simple answer to this. kick all of the athiests out of the country so that our children can have their christmas.

[redking193]

Putting up a Christian display establishes the Christian religion whether or not you put up a Jewish, Muslim, Hindu, Kwanzaaneese, and Flying-Spaghetti-Monsterism one as well.

I think we need to understand "establishment" in the context of the times in which the constitution was written. The country the 13 colonies rebelled against, England, had an "established" religion, the Anglican Church. The English monarch was the head of the Church, the English government oppressed non-believers, hell, to this day Anglican bishops sit in the House of Lords. THAT is an "established religion".

A local government allowing a private group to erect a nativity scene on public lands does not even begin to approach what the Founding Fathers thought they were prohibiting.

[Pharon]

The explain the Everson or even the Lemon decisions to me. The spending programs overturned (vouchers in Everson, paying for secular services like teacher salary in Lemon) were not, AFAIK, limited to Catholic schools. So long as the chance was open to all schools of all religious backgrounds (under your claim of what the establishment clause is) shouldn't those policies be fine?
I'm not sure how Catholic schools and vouchers became part of this conversation. We're (or at least I'm) talking about a purely hypothetical case -- a local municipality that has a public lawn and allows any group in town to use it for any purpose (outside of the pornographic, which is a different matter). So if Catholics want to put up a Nativity scene, or Jews want to have a Star of David during Hanukkah, or atheists want to set up a poster that says "There is no God" -- all of these things would be allowable under the Lemon test (http://en.wikipedia.org/wiki/Lemon_v._Kurtzman). How? Well, let's take a look -- does it pass all three prongs? I think it does:

1. The government's action must have a secular legislative purpose -- I contest that it does, by allowing all local groups to freely assemble, freely speak, and freely practice religion.

2. The government's action must not have the primary effect of either advancing or inhibiting religion -- As long as no group is excluded for religious or non-religious reasons, this prong is satisfied.

3. The government's action must not result in an "excessive government entanglement" with religion. -- Since the local municipality is simply issuing permits, as a neutral and non-biased party, this prong is also satisfied.

[vasili denisov]

I don't know if anybody has heard of it, but there's a "god exists" campaign going across Canada right now on buses and trains (there was a similar atheist campaign down east that was actually banned in a couple provinces, I don't know if the "god exists" campaign has reached there or not). It's strange because it's an ad campaign on public property, and I wonder what people would say if the nativity scene were paid for by a private entity in a similar manner.
Advertising space on public transport is just that, leased advertising space, therefore private space, despite being on a public utility. Those vetting possible advertising can discriminate (rejecting a pro-atheism ad as too controversial) as they wish. You'll find ads for catholic hospices and other charities on New York City transit; again, since this is private space you're not favouring one faith over another.
Except that it is embracing a religion because it is an active action. Things like allowing Klan marches or whatever isn't embracing them, it's simply not going out of your way to stop them (because they have just as much a right). But if the state went above and beyond to put up a display honoring the Westboro Church or whatever? That would be different.
Allowing a church group to put a Nativity scene on a public lawn is no more "active" than allowing a Klan march to happen. It's not like the Nativity pieces are stored at City Hall and then the mayor and his staff put them out during Christmas week.
In the case of Skokie, the local council demanded a bond from the marchers to cover possible costs that would result from violence incited by the march as well as restriction of Nazi symbols that would incite violence. The prohibitions were not the result of the speech itself, but the possible result of said speech; the issue of religious symbols is not the inflammatory nature (the US is not rocked by religious violence or strife) but that the placement of the symbol itself on public land contravenes constitutional law.

In the case of Skokie, we are talking about a march on public space, and the issuing of a permit for this limited use of public space. There is arguably great difficulty finding an equivalent for such public space, in terms of visibility and ability to advertise a political idea, in some private space. The public space for a nativity, were it to be private space would be rented out to the church for a fee; the fees not paid by the church for the use of the public land can be considered a subsidy of their speech. Yet a church could find equivalent private space to promote a nativity scene or promote their message.

I'm not sure how Catholic schools and vouchers became part of this conversation. We're (or at least I'm) talking about a purely hypothetical case -- a local municipality that has a public lawn and allows any group in town to use it for any purpose (outside of the pornographic, which is a different matter). So if Catholics want to put up a Nativity scene, or Jews want to have a Star of David during Hanukkah, or atheists want to set up a poster that says "There is no God" -- all of these things would be allowable under the Lemon test (http://en.wikipedia.org/wiki/Lemon_v._Kurtzman). How? Well, let's take a look -- does it pass all three prongs? I think it does:

The Lemon test deals with new laws, in the case of Lemon, legislation requiring government oversight to make sure that public subsidies did not go towards religious purposes. The injunction against use of public land for promotion of one religious faith does not require any such new law.
I think we need to understand "establishment" in the context of the times in which the constitution was written. The country the 13 colonies rebelled against, England, had an "established" religion, the Anglican Church.

Except that Madison's Memorial and Remonstrance suggests intent was not against any specific church.

The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator.

[Bizz]

http://i362.photobucket.com/albums/oo64/bigbossbizz/DG567.jpg

[Pharon]

Advertising space on public transport is just that, leased advertising space, therefore private space, despite being on a public utility. Those vetting possible advertising can discriminate (rejecting a pro-atheism ad as too controversial) as they wish. You'll find ads for catholic hospices and other charities on New York City transit; again, since this is private space you're not favouring one faith over another.
No, the space is still publicly owned -- it's just rented out for advertising purposes. The reason religious ads like that are allowable is for the exact same reasons I gave in my previous post.

In the case of Skokie, the local council demanded a bond from the marchers to cover possible costs that would result from violence incited by the march as well as restriction of Nazi symbols that would incite violence. The prohibitions were not the result of the speech itself, but the possible result of said speech; the issue of religious symbols is not the inflammatory nature (the US is not rocked by religious violence or strife) but that the placement of the symbol itself on public land contravenes constitutional law.
Placing a permanent religious symbol on public property does, indeed, violate the First Amendment Establishment Clause. I'm in agreement with you on that one. A Nativity scene, however, is not permanent, and therefore not unconstitutional like, for example, a 10 Commandments display would be (again, assuming equal access for any and all local groups).

In the case of Skokie, we are talking about a march on public space, and the issuing of a permit for this limited use of public space. There is arguably great difficulty finding an equivalent for such public space, in terms of visibility and ability to advertise a political idea, in some private space. The public space for a nativity, were it to be private space would be rented out to the church for a fee; the fees not paid by the church for the use of the public land can be considered a subsidy of their speech. Yet a church could find equivalent private space to promote a nativity scene or promote their message.
This isn't the issue here, though. The issue is whether or not a local entity should be prohibited from using the space simply for religious reasons. And that is a violation of the Free Exercise clause, assuming all other groups are allowed equal access.

The Lemon test deals with new laws, in the case of Lemon, legislation requiring government oversight to make sure that public subsidies did not go towards religious purposes. The injunction against use of public land for promotion of one religious faith does not require any such new law.
The Lemon test does not deal with just new laws, but all laws. There's no grandfather clause when it comes to Supreme Court decisions.

[Stax]

School vouchers came into it because you were claiming something didn't violate establishment so long as the opportunity was evenly available to all religions. All religious schools can get voucher students, but they're still illegal.


1. The government's action must have a secular legislative purpose -- I contest that it does, by allowing all local groups to freely assemble, freely speak, and freely practice religion.


In what universe is the government helping people practice religion a secular purpose that does not violate establishment?

2. The government's action must not have the primary effect of either advancing or inhibiting religion -- As long as no group is excluded for religious or non-religious reasons, this prong is satisfied.

You are again drawing a line in the sand that doesn't exist. It doesn't say "primary effect of either advancing one particular religion ahead of others", it says "primary effect of... advancing... religion". Whether you are advancing one or all of them you are advancing religion.

[redsox39]

I love this thread. So many different angles. My favorite part is though:

People defending Nazi's rights to march through the streets carrying signs of hate, while disallowing 96 year church ladies a nativity scene portraying "peace on earth, goodwill towards man".

And the rational I get?
"If the Nazi's march on the city streets, have a rally in a city Park, that is NOT being endorsed by the city...because they just chose not to stop it.
But the Nativity scene in a public park, paid for and mantained by a church during a very Popular American holiday? That is the city saying 'WE PREFER CHRISTIANS TO ALL OTHER PEOPLE'."

Bascially, Atheists and Secularists hate Christianisty so much that they would rather defend the rights of the KKK than their own grandmothers!

Really?

[Stax]

I love this thread. So many different angles. My favorite part is though:

People defending Nazi's rights to march through the streets carrying signs of hate, while disallowing 96 year church ladies a nativity scene portraying "peace on earth, goodwill towards man".

And the rational I get?
"If the Nazi's march on the city streets, have a rally in a city Park, that is NOT being endorsed by the city...because they just chose not to stop it.
But the Nativity scene in a public park, paid for and mantained by a church during a very Popular American holiday? That is the city saying 'WE PREFER CHRISTIANS TO ALL OTHER PEOPLE'."

Bascially, Atheists and Secularists hate Christianisty so much that they would rather defend the rights of the KKK than their own grandmothers!

Really?

Yes, because trying to build up the specifics of an individual situation (You'll help the Nazis but not Christians?!) is a silly strategy when dealing with fundamentals of American law. Not stopping someone (as is what happens when a distasteful group marches or whatever) is vastly different from actively helping someone (as is what happens when a specific group is allowed to put up a display).

[Pharon]

School vouchers came into it because you were claiming something didn't violate establishment so long as the opportunity was evenly available to all religions.
No, that's not what I said. What I said was that as long as the government wasn't preferring either any religion OR NON-RELIGION then the establishment clause is not violated. It's that latter part that must be included to make all the difference.

[redsox39]

Not stopping someone (as is what happens when a distasteful group marches or whatever) is vastly different from actively helping someone (as is what happens when a specific group is allowed to put up a display).

So not stopping a KKK Rally in a public park is DIFFERENT than not stopping a Nativity scene.

If you don't stop the KKK rally, you are a defender of the first amendment. But if you do stop the Nativity scene, you are a defender of the first amendment...

I get it now.

[Stax]

So not stopping a KKK Rally in a public park is DIFFERENT than not stopping a Nativity scene.

If you don't stop the KKK rally, you are a defender of the first amendment. But if you do stop the Nativity scene, you are a defender of the first amendment...

I get it now.

You need permission to set up a display on public land. You do not need permission to speak.

[redsox39]

You need permission to set up a display on public land. You do not need permission to speak.

You sure as fuck need a permit to hold a rally or a parade!

[vasili denisov]

No, the space is still publicly owned -- it's just rented out for advertising purposes. The reason religious ads like that are allowable is for the exact same reasons I gave in my previous post.
A public space that is leased out for private purposes is now private space. Were an area of a public park sold to a private company and then overseen by that company, a church would have no difficulty bidding on, or being granted use of that space.

Placing a permanent religious symbol on public property does, indeed, violate the First Amendment Establishment Clause. I'm in agreement with you on that one. A Nativity scene, however, is not permanent, and therefore not unconstitutional like, for example, a 10 Commandments display would be (again, assuming equal access for any and all local groups).

This isn't the issue here, though. The issue is whether or not a local entity should be prohibited from using the space simply for religious reasons. And that is a violation of the Free Exercise clause, assuming all other groups are allowed equal access.

I don't quite understand the distinction between permanent and temporary symbols. I raise the issue of the equivalent a church might pay for renting an equivalent space for their symbol because what the church might pay for rental of such space can be considered subsidy of that faith. That non-religious groups can have license to the land and non-religious cannot is simply the old idea that the state cannot be seen as favouring one faith over another; by allowing a faith to use public land, they are seen as doing so.

The Lemon test does not deal with just new laws, but all laws. There's no grandfather clause when it comes to Supreme Court decisions.
My last point lacked clarity; I did not intend to mean the difference between laws introduced before and after Lemon, but that the prohibitions on public land don't require any legal statutes that might fall under the Lemon test; it falls clearly under the first amendment already.

[hatepoppy]

i want to make a nativity scene, just about 9 months prior to the scene youre used to.

i want a statue of mary, ass up, with god's fat black cock pumping jizzus up her snatch.

[vasili denisov]

i want to make a nativity scene, just about 9 months prior to the scene youre used to.

i want a statue of mary, ass up, with god's fat black cock pumping jizzus up her snatch.
Again, this would be in violation of the use of public space for one religious purpose or another. But it does sound like it could be first in line to receive a federal arts grant.

[hatepoppy]

i'm still loling at my own 'jizzus' = jesus.

im god damned hysterical.

[redsox39]

i want to make a nativity scene, just about 9 months prior to the scene youre used to.

i want a statue of mary, ass up, with god's fat black cock pumping jizzus up her snatch.

Again, this would be in violation of the use of public space for one religious purpose or another. But it does sound like it could be first in line to receive a federal arts grant.


I think he would have a better chance of this than a regular, boring nativity scene. Just call it art!

[Pharon]

A public space that is leased out for private purposes is now private space. Were an area of a public park sold to a private company and then overseen by that company, a church would have no difficulty bidding on, or being granted use of that space.
We're arguing semantics here, but there is a difference between being an owner and a lessee. The government still "owns" the space, though any private party, in theory anyway, should be allowed to rent it. So technically, it's public property with a private use.

I don't quite understand the distinction between permanent and temporary symbols. I raise the issue of the equivalent a church might pay for renting an equivalent space for their symbol because what the church might pay for rental of such space can be considered subsidy of that faith. That non-religious groups can have license to the land and non-religious cannot is simply the old idea that the state cannot be seen as favouring one faith over another; by allowing a faith to use public land, they are seen as doing so.
I'm not sure why my explanation for this keeps falling on deaf ears here. The government is not favoring anyone as long as they treat all faiths and all non-religious groups EQUALLY, with respect to issuing permits for the space. The distinction between permanent and temporary is significant here, because a permanent religious symbol would occupy space that other local groups wouldn't be able to use. So in that instance, the government WOULD BE promoting one religion over others.

My last point lacked clarity; I did not intend to mean the difference between laws introduced before and after Lemon, but that the prohibitions on public land don't require any legal statutes that might fall under the Lemon test; it falls clearly under the first amendment already.
Obviously it didn't -- otherwise Lemon v. Kurtzman would never have been necessary in the first place. Let's keep in mind, however, that a Supreme Court ruling has the same weight, legally speaking, as the text of the Constitution itself anyway, though.

[Stax]

I'm not sure why my explanation for this keeps falling on deaf ears here. The government is not favoring anyone as long as they treat all faiths and all non-religious groups EQUALLY, with respect to issuing permits for the space.

Because the establishment clause doesn't say shall make no law FAVORING a religion, it says establishing. If I build the Catholics, Protestants, Jews, Muslims, and Hindu all a religious building and the atheists an arcade or something I'm not FAVORING any of those religions but I'm most certainly establishing them.

[Pharon]

Nobody here is talking about the government "building" anything. All this would be is an EQUAL access for everyone to permitted space for displays -- regardless of race, religion, or creed. Nothing more, nothing less.

Also, the term "favoring" is synonomous with "advancing," which is the word used in the Lemon Test. Same difference.

[Archetype]

Nobody here is talking about the government "building" anything.

I was saying boo-urns.

[Stax]

Nobody here is talking about the government "building" anything. All this would be is an EQUAL access for everyone to permitted space for displays -- regardless of race, religion, or creed. Nothing more, nothing less.

Also, the term "favoring" is synonomous with "advancing," which is the word used in the Lemon Test. Same difference.

Favoring != advancing. A rising tide lifts all boats, not favoring any, but a rising tide ADVANCES all boats.

I just used building because it was a clearer example. Government helping build up religion (which allowing a public display of their faith on government land would do) is advancement/establishment whether or not you do it for ALL faiths (and the faithless).

[vasili denisov]

We're arguing semantics here, but there is a difference between being an owner and a lessee. The government still "owns" the space, though any private party, in theory anyway, should be allowed to rent it. So technically, it's public property with a private use.
Except the distinction is important one; the issue is not subsidy of religion, but public subsidy. A private party giving space to a religious faith is doing so independent of the state. It may be doing so using materials bought or leased from the state; but the decision is that of the private party.

I'm not sure why my explanation for this keeps falling on deaf ears here. The government is not favoring anyone as long as they treat all faiths and all non-religious groups EQUALLY, with respect to issuing permits for the space. The distinction between permanent and temporary is significant here, because a permanent religious symbol would occupy space that other local groups wouldn't be able to use. So in that instance, the government WOULD BE promoting one religion over others.
Well, first it's not an equal time issue like in a political campaign. It's simply an issue of subsidy; Madison argues that no faith needs the support of the state, whether that support comes in a subsidy of temporary or permanent space.

So, I don't think the intent of giving equal respect to all religions is relevant. On a side note, I don't believe it is possible. For one, what is equal respect? Let us suppose a town with a population divided between 90% of faith A and 10% of faith B. If permits are issued disproportionately to A is that equal respect? If they are distributed equally between both faiths, are we diminishing faith A? There is a further problem. Both Islam and Judaism have strong prohibitions against graven images; so public space would end up disproportionately or exclusively devoted to christian imagery. So we end up with the unintentional possible effect of public space enshrining one faith over others.

Obviously it didn't -- otherwise Lemon v. Kurtzman would never have been necessary in the first place. Let's keep in mind, however, that a Supreme Court ruling has the same weight, legally speaking, as the text of the Constitution itself anyway, though.
Lemon, though, is necessary because what it's deciding isn't self-evident with regard to the constitution. Lemon dealt with funds for school supplies, some of these funds going to religious schools. The mandate that religious schools had to make sure that their funds did not end up buying religious materials is what failed the Lemon prongs. On the other hand, a law barring religious works placed in a public space is superfluous; it's directly and obviously unconstitutional.

[Mister Mobius]

Yeah that's right.

[LethalStrike]

Those same folks that scream against nativity scenes on courthouse lawns are the ones that want to run the government under Biblical principles. Seperation of church & state? Our city had run out the adult businesses in town due to "moral" reasons yet it allows clubs where drugs, beatings, and the occassional murder happen weekly, if not daily, to continue to stay in business. They arrest the Chippendale's but allow X-rated movies to play on the cinema. Hypocrites abound.