Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 18 Conference. On both Tuesday and Wednesday we expect one or more decisions in argued cases; we will be live blogging both days beginning at 9:45 a.m.

Tejinder Singh Contributor

Posted Mon, December 19th, 2011 9:22 am

Christmas and the Court

In this week’s Community, we’re discussing Christmas and the Court. Topics will include the Court’s Christmas party, its recent Establishment Clause cases, trends in the law regarding the relationship between church and state, and more!  We look forward to hearing your views, and wish a happy holiday season to all of our readers.


  • Tejinder Singh – 1 Promoted Comment

    In this thread, please provide your thoughts on the Court’s Christmas party. Is it a telling conflation between church and state, or no big deal? Is it consistent with the Court’s Establishment Clause jurisprudence, or does it seem out of place?

  • Richard Schragger – 3 Promoted Comments

    The Court’s Christmas party is trivial. I think it is poor form not to make slight adjustments to take into account the sensibilities of an increasingly pluralistic judicial staff and an increasingly pluralistic nation. Nevertheless, the Christmas party is not unconstitutional. What’s more, though they take up a lot of breathing space, symbolic church-state entanglements are not where the real action is in the Establishment Clause arena. The expressive harms of government endorsement are minor compared to the more substantial harms of government funding. In other words, the real action is around money, and the Court’s recent Establishment Clause standing decisions–Hein and Winn–make it increasingly difficult for plaintiffs to challenge programs that funnel significant state monies to churches.

    • Tejinder Singh – 1 Promoted Comment

      This is an interesting point, but what’s the difference between endorsement and funding that makes the Establishment Clause more relevant to the latter than the former? If taxpayer dollars go to a Supreme Court Christmas party, or they go to a church which spends them to put on Christmas mass, what makes the former constitutional but the latter not? I’m assuming that the answer can’t be that the Christmas party is not a religious event, but let me know if that’s wrong, or what other distinction I’m missing.

      Or is the argument that the focus on endorsement distracts us from more important issues, like funding, or laws that are in fact religiously motivated, but do not overtly endorse a religious view?

  • Richard Schragger – 3 Promoted Comments

    I agree that there would be similar Establishment Clause concerns whether the government held its own religious services or funded such services. But you raise a good point. Is the Christmas party a religious service? By holding such an event, is the government making a certain type of Christianity its official religion? I don’t think so, though one can imagine a situation in which the government did seem to be sponsoring a specific type of religious service. For example, the plaintiffs in Hein asserted that the White House was sponsoring what amounted to Christian revival meetings. That seems troubling and comes much closer to the establishment of an official church.

    My argument is not that government expression of religious dogma is never problematic under the Establishment Clause–it certainly is. I’m making your second point: that the endorsement concern often distracts from funding and religiously-motivated lawmaking, and those two issues deserve more attention. Funding creates dependency between church and state. It encourages churches to lobby lawmakers and lawmakers to trade support for largesse. It raises the stakes for religious groups, who may not be able to survive otherwise without state aid, or may benefit to such a degree that they are co-opted by the state. Government expression of religious dogma is not harmless by any means, but the funding of the religious mission is more dangerous over the long run.

  • – 1 Promoted Comment

    Government laws and policies can and do raise establishment clause issues when they signal that members of one religion are a favored “in” group and that others are outsiders of the political community. This harm occurs with or without monetary backing. While the Chief Justice could sponsor a christmas party at his home, at his own expense, (which would be private speech and fine) when he throws the weight of the Supreme Court behind the festivities, it becomes a government endorsement of christmas. Of course, christmas has proselytizing and secular elements, and when treated with care (or seven plastic animals) recognition of christmas can be sufficiently secularized to get Fox News to notice, but as I understand it, the caroling is not limited to Jingle Bells and I’ll be Home for Christmas.

    Although I might agree with the above comments if this were a christmas party at the EPA or some other governmental institution, this is the Supreme Court. By having a christmas celebration, woven into the institution, the Justices will get the impression that this governmental recognition of one religion is normal and proper. In the opinions and oral arguments for many establishment clause issues, the Justices frequently raise religions practices of the court that have never been challenged, such as the invocation of “god save this honorable court” at the beginning of sessions and the presence of Moses and the Ten Commandments chiseled into the courthouse’s frescos. Supposedly harmless recognition of religion, and celebration of christian doctrine by the court, have subtly affected the holdings in real cases where the government activity challenged may be far from trivial. At the very least, we should expect the tribunal of last resort avoid the appearance of favoring litigants of one faith over others.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, please discuss the Court’s recent Establishment Clause cases. Is the law getting clearer, or more convoluted? Is it moving in the right direction, or not? What do the Supreme Court’s recent decisions (and the divisions on the Court) tell us about the Court’s understanding and view of the relationship between church and state?

  • Jordan Lorence – 1 Promoted Comment

    I was very disappointed that the Supreme Court declined on December 5 to take up the Bronx Household of Faith case from the Second Circuit, a case Scotusblog noted as a Petition to Watch. The Second Circuit upheld a NYC school board policy that prohibited private religious services from the public schools during nonschool hours, while allowing virtually any other private meeting. Because this is private religious expression, there is no Establishment Clause issue when the government merely accommodates those speakers in an empty governmental building. By saying that there are Establishment Clause implications that NYC can legitimately act on to exclude private religious expression, the Supreme Court allowed a confusing decision to stand that conflicts with what the Supreme Court has said in its equal access decisions like Widmar v. Vincent, Lamb’s Chapel and Good News Club.

  • Richard Schragger – 3 Promoted Comments

    The prior comment raises an important point about the Court’s religion clause doctrine: it is being supplanted in important ways by free speech doctrine. Since the mid-1990s, the equal access cases have turned what would be Establishment Clause cases into limited public forum cases. And the recently decided Christian Legal Society case, in which the Court upheld a law school’s application of a non-discrimination rule to a religious group, turned on a debate about the extent and nature of the right of expressive association. The upcoming ministerial exception case, Hosanna-Tabor, also raises expressive association questions. Like Christian Legal Society, it asks to what degree the government can regulate discrimination when practiced by certain kinds of associations–in that case, a church.

    These cases have been moving toward treating religion just like other forms of expression, speech, and association. But the equal treatment regime tends to under-appreciate Establishment Clause harms and under-protect free exercise values. This is generally the direction the Court has been heading in for some time–certainly since Zelman, the school vouchers case, and Smith, the peyote case. Thus, while the doctrine is somewhat in flux (many of these cases have been decided 5-4), the general trajectory was established in the Rehnquist Court. A significant church-state relationship does not seem to bother a majority of the justices. Indeed, for Justices Scalia and Thomas, the Establishment Clause does very little work indeed.

  • – 1 Promoted Comment

    Recent religion clause jurisprudence has been moving towards having a greater “play in the joints” between establishment clause violations and free exercise rights. Free exercise has been constrained under Smith, and volitional statutory accommodations like RFRA and RLUIPA have become more permissible. I think the unintended consequence of this is that mainstream religions are able to exercise more religious freedoms, while fringe and disfavored religions have less.
    Especially under Justice Scalia’s interpretation of the lemon test–where under the purpose prong, any conceivable secular justification is acceptable even if the purpose is overwhelmingly colored by religion–politically powerful religions are able to carve out special treatment. This is why the government can erect religious icons, such as the nativity scene or the ten commandments, and why the second Bush administration could pursue its faith-based initiatives program which actively funneled grants to religious service providers over secular ones. Madison’s conception of the establishment clause, where the government was forbidden from taking three pence from a man and giving it to advance another’s religion, is clearly far from the court’s current jurisprudence.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, please discuss the future and the desirability of the Lemon test. Is the Court likely to abandon Lemon soon? And is the test an appropriate guide to Establishment Clause inquiries, or should it be modified or overruled?

    • Bradley Smith – 3 Promoted Comments

      In discussing the future of the Lemon test, it seems prudent to look at the criticisms and see if they offer any viable alternatives. Justice Scalia seems to be one of the most vocal proponents of a new Establishment Clause test. Speaking at UVa, he advocated the use of tradition, instead of a “mechanical application of the Lemon test” (http://www.law.virginia.edu/html/news/2008_spr/scalia_story.htm).

      While an interesting thought experiment, it seems impractical to use tradition as a guide. At one point or another, religious tradition has advocated numerous acts that by modern standards are abhorrent, and should certainly be legally forbidden (killing non-believers, the inferior role of women, etc.). Even the use of a less absurd religious notion such as funding for private schools, tradition does not seem a solid legal argument. The mere fact that a group has traditionally enjoyed something does not mean they are entitled to it indefinitely. As society changes, so do traditions, and whether these changes are formal or informal, using something as ephemeral as tradition is a legal landmine.

      This is not to say that Justice Scalia (and others) do not have valid criticisms of Lemon. As the Justice says in Lamb’s Chapel, the test is often ignored completely, or used merely as guidelines instead of binding precedent. However, the desirability of the test is unquestionable. It provides a nice middle road by allowing secular interference in religion while preventing discrimination. The test allows for religious tradition and beliefs to exist and thrive, while also allowing legislators some reign to control behavior that may be publicly harmful (Church of Lukumi Babalu Aye v. Hialeah compared to Employment Division of Oregon v. Smith).

      While the Lemon test may need clarification or modification, it seems unlikely to be completely abandoned in the near future. As recently as 2005, the Court has noted that the Lemon test serves an important function, while not always being completely dispositive in and of itself (McCreary County v. ACLU of Kentucky).

      • David Fisher – 1 Promoted Comment

        The suggestion that “it seems impractical to use tradition as a guide” is apt in part because “tradition” and “traditions” are disputed terms. Traditions are sometimes connected narratives through which ideas or values are transmitted from one generation to another, but “tradition” is a body of authoritative texts (such as the canon of the Bible, or the US Constitution, along with historic commentaries and interpretation of these)that functions to justify institutions and practices. Unlike traditional narratives, which present coherence through sequence, “tradition” preserves coherence through the device of a “canon within the canon.” A specific text (or concept) is identified as *the* key for interpreting all others: Romans was Luther’s canon within the canon, and the sovereignty of God Calvin’s main concept.

    • Joe Cocurullo – 0 Promoted Comments

      As to the Lemon Test, I think Jay Wexler in “Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars” is correct to say that it might be messy, with various close calls, but that’s because the questions are hard, with close questions along the margins.

      The test provides a good as any starting point. As to Scalia’s point, eh, when isn’t it true that some test or rule is ignored or some convenient exception or get around is put in place? He’s not as pure as he tries to make himself out to be.

      Some suggest that the problem is that the current majority does not wish to take the cases where the Lemon rule would take them. But, what do you put there instead? I think that is one reason why Kennedy might not wanted to take the Utah cross highway case. I think the endorsement test gloss is helpful and other tinkering is possible, but the basic principles (including that the EC is not merely about coercion & Kennedy agrees in various cases, including schools or blatant public displays such as permanent crosses on top of city hall) are correct.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, please comment on the most important or glaring Establishment Clause issues that aren’t currently being addressed in the courts.

  • Joe Cocurullo – 0 Promoted Comments

    “These cases have been moving toward treating religion just like other forms of expression, speech, and association. But the equal treatment regime tends to under-appreciate Establishment Clause harms and under-protect free exercise value.”

    I have long felt that this is a problem and believe that some members of the Supreme Court tried to make free speech do too much work and in the process ignore that the 1A has various components, some of which work in conflict.

    Religion sometimes includes expression and illicit endorsement can include funding or other support of religious expression. It is not a 1A violation to hold that the government cannot endorse a specific prayer, even if the prayer is a form of speech.

    Yes, this means the government cannot specifically support religion as compared to political or social speech in certain contexts. The 1A makes religion different. NY can have a state book, not a state religion. Certain matters of religion, even speech related, is taken away from the state.

  • Richard Schragger – 3 Promoted Comments

    I have recently argued in a Texas Law Review article that the Establishment Clause is dramatically under-enforced in three ways: (1) the Court does not fully enforce the secular purpose prong of the Lemon test, and thus religiously-motivated lawmaking is permitted; (2) officials’ religion-endorsing rhetoric is allowed except in narrow contexts; and (3) religious-political alliances are simply not policed by the Supreme Court. In other words, the gap between the judicial establishment clause and the political establishment clause is significant. This does not mean that the Supreme Court should be more active in enforcing its stated doctrine; there are some good pragmatic and theoretical reasons why it does not attempt to do so. Nevertheless, the nonestablishment norm in the United States is substantially preserved not through judicial action but through politics. The Court’s pronouncements in this area are expressive for the most part, important to articulate values, but of limited import. The real action seems to take place away from the Court, in the political branches and in the ways that officials and political parties interact with religion and religious interest groups.

  • Bob Ritter – 0 Promoted Comments

    I imagine that it was a holiday party, probably not a Christmas party — meaning that the party was intended as general cheer rather than dedicated to Christianity. In this context, I would agree that the issue presented here is trivial.

    But the larger issue of the Court’s Establishment Clause jurisprudence is of great concern for two reasons. First, the Court’s decisions violate the first rule of law, namely predictability/consistency. And, second, a number of the Court’s decision violate the principle of religious neutrality — government may not prefer one religion over another, or religion over nonreligion (or the Court uses standing to refuse to hear EC violations altogether, e.g., Elk Grove Unified School District v. Newdow and Hein v. FFRF).

    Our nation is doomed to inconsistency, or should I say confusion, as long as the Court starts each session with a prayer (“… god save this honor Court”), uses bogus rationales for maintaining Christian domination (e.g. Van Orden v. Perry and Arizona Christian School Tuition Organization) and declines cert to bring government behavior back in line with the Constitution (e.g., Newdow v. Roberts).

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