For as long as anyone can remember, a Nativity scene has been displayed during the Christmas season in front of the public library in Emmaus, Pennsylvania, but not this year.
After Americans United for Separation of Church and State dangled the threat of a lawsuit, the borough agreed reluctantly to end the tradition this year. The scene has since found a new home on Main Street outside the Emmaus Moravian Church.
Not everyone was happy about it. Some argued that the display honored the borough’s distinctly Christian roots: Emmaus was founded by the Moravians and named after the biblical town where Jesus was seen by two of his disciplines after his crucifixion and resurrection.
“There were a couple of members of the council who felt strongly,” said borough manager Shane Pepe. “Their emotional response was, ‘Why should we bow down once again to an overly sensitive organization that is looking to sue people?’ But we’re not fighting a legal battle over this.”
For atheist and secular rights groups, the holiday season has become the busiest time of the year as they ring in the winter solstice by taking on public Christmas and Hanukkah displays seen as violating church-state separation.
Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said her organization has handled hundreds, if not thousands, of such cases over its 40-year history. The foundation now has nine attorneys and two legal assistants on staff.
“All we do in December is this kind of thing,” said Ms. Gaylor. “People will be driving past their city hall on Christmas Eve and send us an email with a picture because they’re offended. It goes on all through December and into January.”
Last week, the city of Dover, Ohio, agreed to move its nativity scene and Ten Commandments display from public property to the grounds of a local church after the foundation threatened legal action.
“We’re not trying to do away with religious displays,” said Ms. Gaylor. “They belong on private property. They don’t belong on governmental property, where the favored religion is endorsed and other people are excluded. That’s what you would expect in a theocracy.”
Often all it takes is a single letter of complaint to convince local governments to remove a creche — or reduce its prominence by adding non-religious symbols like reindeer and Santa — which frustrates religious-freedom groups like Becket.
“There are always some Scrooges trying to spoil the Christmas or Hanukkah season,” said Eric Baxter, Becket vice president and general counsel.
He said he believes the courts are moving away from the idea that a menorah or creche in front of city hall violates the constitutional prohibition against state-sponsored religion unless leavened with secular symbols or thrown open to all comers.
“I think ultimately the Supreme Court is moving toward a standard that says, ‘Look, you can have authentic celebrations that represent the culture of the community as long as you’re not excluding one religion over another,'” said Mr. Baxter. “And just because you have those kinds of displays that are celebrating authentic cultural events doesn’t mean you have to include critical statements of those events or disparaging or cynical statements.”
The current standard has led to eclectic — some would also say whimsical, others ghastly — holiday forums such as the one at the Wisconsin State Capitol, which has featured in the past anti-religious contributions such as a manger scene replacing the baby Jesus with a “flying spaghetti monster.”
Last week, the Satanic Temple was cleared to place a statue at the Illinois Capitol called “Knowledge is the Greatest Gift,” showing a woman’s forearm with an apple.
For 23 years, Ms. Gaylor said her group has placed a winter-solstice sign at the Wisconsin capitol, and has in recent years included a “Bill of Rights nativity” featuring a cut-out of three Founding Fathers and the Statue of Liberty.
“It’s kind of a clutter at this time of year, and we don’t think it really belongs at the state capitol, and we have long said if they didn’t have religion at the state capitol, we would not be there,” said Ms. Gaylor. “But if they’re going to have religion, we’re going to be there, too.”
Three years ago, Texas Gov. Greg Abbott removed the foundation’s “Bill of Rights nativity,” calling it a “juvenile parody,” but a federal court ruled against him last year on First Amendment grounds. He has appealed the decision.
With legal precedents like that, however, it’s little wonder that small towns like Emmaus (population 11,400) are reluctant to charge into the courthouse to defend their nativity scenes.
“It was a tradition in the community based on the history of the community, that’s why it was put up,” said Mr. Pepe. “We got this letter, and quite honestly, it’s not worth fighting in a court of law over something we think we would probably lose. And it’s in a more visible location now anyway.”
Mr. Baxter said he can hardly blame them, given the very real risks of onerous legal costs and negative publicity.
“The courts have made such a mess of this area that a lot of cities and towns are afraid they’ll be sued and they don’t want to spend a lot of money defending themselves, even though there are organizations that would represent them at reduced or no cost,” he said. “But they just figure the hassle is not worth making an issue of this.”
What may turn the tide, he said, are recent cases such as the 2014 decision in favor of legislative prayer in the town of Greece, New York.
Last month, the Supreme Court agreed to hear the case of the Bladensburg Peace Cross in Prince George’s County, which is part of a public war memorial.
If the high court holds that such religious symbols are constitutional, “that would have a big impact on these holiday display cases, reinforcing that the Establishment Clause was intended to prevent coercion, to protect people from being coerced into religious activity that they disagree with,” Mr. Baxter said.
“It wasn’t intended as a government censorship tool to decide what aspects of history and culture are not acceptable in the public square,” he said.
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