Tag Archives: Religious Displays

Guerres de Noël

US-LIFESTYLE-HOLIDAY-DECORATIONS

I used to think that the annual Christmas Wars were strictly an American thing, like corn dogs and and attorneys’ contingency fees. Only in America, I thought, do people seriously argue about whether to allow Christmas trees in public parks or to permit public school choirs to sing “Silent Night” at holiday concerts. The issues become more and more bizarre. This year, a Maryland school district decided to remove even a reference to “Christmas” in the school calendar–as though the reference amounted to religious oppression and removal would make people forget what holiday comes round every 25th of December.

Our Supreme Court, whose Establishment Clause jurisprudence focuses on factors like the presence of plastic reindeer and talking wishing wells, bears much blame for this state of affairs. But judges in other countries seem eager to replicate our model. Last week, a French administrative court ruled that the town of La Roche-sur-Yon–located, appropriately, in the historically royalist, counter-revolutionary region of the Vendee–must remove a Christmas crèche from its city hall. The court held that the crèche violates the 1905 French Law on the Separation of Church and State, which, according to the court, forbids religious displays like crèches on public property. According to news reports (in French), the court concluded the display was incompatible with the principle of state religious neutrality, or laïcité.

I don’t know enough about French administrative law to evaluate the decision. What I find fascinating, as an outsider, is how closely the French debate tracks the American. The lawsuit seeking removal of the crèche was brought by a secularist group called the “Fédération de la Libre Pensée,” which, I gather, is analogous to American groups like the Freedom from Religion Foundation and American Atheists. The group argues that the crèche “fails to respect the conscience of the citizen” by “imposing” on him a religious display whenever he enters city hall. In response, the town’s supporters evoke cultural traditions more than Christianity. Religious neutrality, they say, does not require abandoning longstanding French customs. What’s next, they ask? Church bells and Christmas lights? They’ve started a popular hashtag campaign, #TouchePasAMaCreche.

Each side has to live with its ironies. Notwithstanding the rhetorical commitment to laïcité, French law allows a great deal of entanglement between church and state–more, in some respects, than we would tolerate in the US. (Guess who owns Notre Dame and all other church buildings that existed as of 1905? Hint: it’s not the Church). On the other hand, the defense of tradition in this case rings somewhat hollow. La Roche-sur-Yon only began displaying the crèche 22 years ago.

The city has vowed to appeal the decision. I’ll keep you posted. Meanwhile, here’s a thought. If France has adopted the Christmas Wars, can Black Friday be far behind?

Photo: Le Figaro

Berger on Kemalism Here and Abroad

Peter Berger has an interesting column this week, well worth reading in full, about the display of religious symbols by the government and the culture war features of legal disagreement. The legal cases he discusses are not new–the Utah public highway cross case (Davenport v. American Atheists) which the Supreme Court declined to hear and the Lautsi case. Professor Berger might have noted that in declining to hear the case, the Supreme Court left intact the Tenth Circuit’s ruling striking the crosses down as an Establishment Clause violation.

But that’s largely irrelevant, for the insights of the column lie in his comparative cultural analysis:

Why the recent flurry of church/state issues? In America it is part of the politics surrounding the so-called “culture wars”:  The rising influence of conservative Protestants in the Republican party has mobilized liberals against any political role of organized religion—especially since conservative Catholics have been allied with conservative Protestants on most of the issues “south of the navel” (issues, that is, that liberals are personally anxious about). The politics in Europe is different: Conservative Christianity (Protestant or Catholic) is not very significant politically, but the perceived threat of militant Islam has made secularism (such as French laicite) appear as a defense of European values against theocracy.

I think there is also the factor of lawyers looking for business, and then the professional deformation of this group comes into play. Lawyers live, literally and emotionally, on the making of fine distinctions. Thus the distinctions made in American courts, on where a particular instance violates or does not violate the First Amendment, are veritably scholastic (or, if you will, Talmudic). These considerations tend to be sovereignly free of common sense. . . . Am I exaggerating? Of course I am. But I do so for a reason: I am applying the old casuistic method of reductio ad absurdum. 

Let me “reduce” some more: The Kemalist assault on religion in public space is related to an old progressive notion, the abolition of history. It goes back to the Enlightenment and particularly to its political expression in the French Revolution. It was not for nothing that the latter abolished the old calendar and substituted a new one (with months like brumaire and thermidor). That particular exercise did not last long, but the underlying progressive idea persisted: By the very notion of progress, the present is further on the march toward the glorious future than anything in the past. It affected America too: see the motto about the “new order of the ages” emblazoned on the Grand Seal of the United States (and on the dollar bills in your wallet). But in this country these utopian fantasies have often been modified by common sense and by Protestant suspicions about human nature. Be this as it may, the abolition of history continues to be a dream that haunts the progressive imagination . . . .

As I write this, we are on the eve of the Christmas season (the ADL guide would surely prefer just plain “holiday season”). There is the usual orgy of shopping, the favored season for shopkeepers to be merry. Christmas carols blare through the PA systems, jolly Santa Clauses (fully evolved from their saintly ancestor, St. Nicholas) listen to the wishes of small children perched on their knees, everyone smiles with good will. This synthesis of religion and secularity is regularly criticized from opposite sides. The secularists don’t like the religious part. They can’t do much about the shopping malls, but they can surely agitate and litigate against any trace of Christianity in the holiday season insofar as it is acknowledged on government property—maybe crèches can be allowed, but without baby Jesus or any other New Testament characters. If any values are to be celebrated, they are family ties, the happiness of children and general good will. And on the other side are those who want to “bring Christ back into Christmas”, doing away with all the supposedly fake jolliness and commercial exploitation, instead restore the original religious character of this holy-day. I think that both criticisms are misguided. There is nothing fake about the secular cheer of the season, nor about the expressions of general amiability – and there is nothing wrong about the fact that some people are making money out of it. Those who want to focus on the birth of Christ the savior, are free to do so. Let me admit it: I do celebrate the birth of Christ at Christmas. I also like the secular cheer that is also celebrated. I even like the commercialism—it is a source of happiness for many people, especially children.

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.

Colossal Armenian Jesus Towers Over Syria

Here’s a curious little story about a gigantic statue of Jesus (standing a Armenian Jesusgargantuan 128 feet tall, and weighing in at several tons) cast in Armenia that has been installed on top of a mountain near the Monastery of the Cherubim in the Syrian city of Saidnaya (which is itself apparently already 2,100 meters above sea level). This story reports that the project was supported by the Russian government and the Russian Orthodox Church. The statue is reportedly visible from Lebanon, Jordan, Palestine, and Israel.

Movsesian Essay Appears in New Anthology on Public Religion

This month, Ashgate releases Volume III of Religion in the Public Space, part of its Library of Essays on Law and Religion series. The volume is edited by Silvio Ferrari (Milan) and Rinaldo Cristofori (Milan), and contains essays by, among others, Jürgen Habermas, Charles Taylor, Mary Ann Glendon, and, I blush to say, yours truly–my essay, Crosses and Culture, on religious displays in the US and Europe. Here’s the publisher’s description:

Religion in the public sphere is one of the most debated issues in the field of law and religion. This volume brings together articles which address some of the more prominent recent cases relating to religion and education, religion and the workplace, family law and religious symbols. The essays discuss the meaning of secularism today and the difficult issue of religion in the public sphere and reflect a wide variety of viewpoints. This volume maps the key elements of this multi-faceted problem, offers essential material and provides an important starting point for an understanding of the issues in this century old debate.

Worth A Thousand Words

In my last post, I discussed the question of attribution of messages. Today, I want to turn to the perception of messages, in particular, the visual perception of religious symbols. We all know the saying that a picture is worth a thousand words. Does it make sense, then, for courts to distinguish between the textual and the visual, and to consider the latter less troublesome than the former?

Let me start with the European Court of Human Rights (ECtHR) Grand Chamber decision in the Italian classroom crucifix case, Lautsi v. Italy. The Italian government argued “[w]hatever the evocative power of an ‘image’ might be . . . it was a ‘passive symbol’, whose impact on individuals was not comparable with the impact of ‘active conduct’.” Referencing an earlier decision of the German Federal Constitutional Court, the applicants conversely argued “[a]s to the assertion that it was merely a ‘passive symbol’, this ignored the fact that like all symbols—and more than all others—it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible.”

The Grand Chamber explicitly addressed the active/passive distinction, stating that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.” Several concurring opinions also addressed the designation of the crucifix as a “passive” symbol. The concurring opinion of Judge Power agrees with the majority’s assessment of the crucifix as a passive symbol “insofar as the symbol’s passivity is not in any way coercive,” but her assessment is more nuanced. She “concede[s] that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner.” In her framing, the question is not whether symbols can communicate like textual language—she asserts they can—but whether the message communicated is one that violates the negative religious freedom of the observer under the Convention.

The ECtHR is not alone in asserting that visual religious symbols are “passive”: In Lynch v. Donnelly, Chief Justice Burger said the crèche was “passive”; in Allegheny County, Justice Kennedy used the “passive” label to describe the holiday displays; Chief Justice Rehnquist said the Ten Commandments monuments (featuring text) in Van Orden v. Perry were “passive”; in his dissent in McCreary County, Justice Scalia said the Ten Commandments display was “passive”; and the lower courts use the “passive” symbols language as well.

The “passive” label is used in two ways (alternatively or cumulatively). It can be an empirical claim about the way in which visual images communicate. Passivity used in this way suggests less ability to communicate effectively than textual speech. Or “passive” is a label for a bundle of factors—including brief exposure to the symbol, a vague notion of minimal offensiveness, or other characteristics of the symbol that result in its presumed noncoerciveness. But these notions, unlike the empirical claim, go to the context and cultural meaning of the symbol. The empirical claim is false; the neuroscience of visual perception just does not work that way. The context-and-cultural-meaning claim is complex and the “passive” designation is at best an ambiguous and misleading label. Either way, courts here and abroad should stop using the “passive” label to describe religious symbols.

Thanks, Mark and Marc, for having me over!

State Religious Neutrality and the Point of Departure

A quick followup on Claudia’s very interesting post on state religious neutrality. As Claudia suggests, pretty much every Western democracy nowadays accepts the notion that the state must be “neutral” with respect to religion. But, as Claudia points out, the fact that everyone uses the same word obscures underlying disagreements. In the US, for example, neutrality means that the state may not display sectarian symbols, at least in a manner that seems to endorse the sectarian message. Not so in Europe. There, the ECtHR has made plain, a state may display sectarian symbols as long as the state does not engage in active proselytizing. Thus, according to the recent Lautsi decision, European states may display crucifixes in public school classrooms, conduct that would be unthinkable in the US under current Supreme Court jurisprudence.

In trying to understand the different meanings the same word has in different systems, it’s useful to consider what Tocqueville referred to as a nation’s “point of departure.” Every legal system is embedded in a particular culture with a particular history. In Europe, where links between church and state are traditionally very strong, certain state actions, like placing sectarian symbols in the public space, are simply part of the background, something most people take for granted. In the US, however, a society with a much stronger separationist tradition, such actions are not seen as neutral and innocuous. I explain this all in more depth in a recent article on the Italian crucifix case, “Crosses and Culture: State-Sponsored Religious Displays in the US and Europe,” in the Oxford Journal of Law and Religion. Interested readers can find the article on the journal’s website, here.

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

Astoria on The Endorsement Test and Equal Status

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

A Bunny is a Bunny

I guess it was bound to happen. A public elementary school in Alabama has renamed its annual Easter Egg Hunt to avoid giving offense to non-Christian children and parents. According to the school’s principal, Lydia Davenport, the hunt will still take place; it will just no longer have the word “Easter” attached to it. The seasonal rabbit will likewise go nameless:

“Kids love the bunny,” smiles Davenport, “and we just make sure we don’t say ‘the Easter bunny’ so that we don’t infringe on the rights of others because people relate the Easter bunny to religion; a bunny is a bunny and a rabbit is a rabbit,” Davenport concluded.

Well, you can’t argue with that. Most disputes about public holiday displays in America involve Christmas, of course. This is so, I think, because Easter, although far more important as a religious holiday, is relatively minor as a public holiday. Perhaps that’s because it falls on a Sunday. Compared to Christmas, Easter passes by almost without notice in America. But there’s no reason we can’t fight over it as well. Let the Easter Wars begin.