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January 3, 2000, Monday

SECTION: POV; Pg. 43

LENGTH: 1271 words

HEADLINE: Let Nothing You Display
Making Room for Religion in Public Forums

BYLINE: Ronald D. Rotunda

BODY:

As the yuletide holidays have passed, so too has the litigation that comes with the season. Every year around this time, suits are brought challenging municipalities that place or permit the placement of nativity scenes on public property. In the spirit of ecumenism, sometimes they also challenge the placement of menorahs.

Before we start preparing for next year's courtroom ritual, we should rethink what it is we're arguing about. For it's not the Constitution that bars public displays of religious belief. It's the failure of our courts and our local governments to draw a properly accommodating line between church and state.

Consider how the law now handles nativity scenes on public property. The Supreme Court has determined that cities and towns may build, finance, and display crhches so long as they have all the spirituality and solemnity of a miniature golf course. In other words, if the city includes plastic reindeer, candy-cane poles, twinkling colored lights, a jolly Santa Claus, etc., then the courts may allow the display. Litigation over public crhches has become very fact-intensive; Supreme Court opinions are often accompanied by photographs showing exactly how the display looked.

There is a simpler-and constitutionally acceptable-solution. The Court could treat stationary displays, like a crhche or menorah, the way it already treats moving displays, like a parade.

Try General Restrictions

Here's how it would work: If the area in question is, or the state has designated it as, a public forum (e.g., a street, a public park, or a room in city hall), then the state can impose reasonable time, manner, and place restrictions without regard to content. The state can, for example, set a reasonable procedure to apply for a permit, but the state cannot regulate the message of the resulting display or march. This is consistent with the Supreme Court's 1995 decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, holding that it would violate the First Amendment for Massachusetts to require private citizens organizing a parade to include marchers who would make a statement that the parade organizers did not wish to make.

If the Court applied this same rule to stationary displays, it would not have to consider the specifics of each disputed display-how many reindeer? how prominent was baby Jesus?-and the state could get out of the business of trying to regulate nativity scenes.

The good news is that the Court may be moving in this direction, given its opinion in another 1995 case, Capitol Square Review and Advisory Board v. Pinette, which held that a state does not violate the establishment clause when, pursuant to a neutral policy, it allows a private party to display a religious symbol (a large cross) in a public forum (a government-owned area located next to the statehouse). The plurality opinion said that the free speech and establishment clauses protect such private speech endorsing religion.

Unfortunately, the fragmented Pinette Court produced no majority opinion, and the lower courts do not seem interested in following through on the principle underlying that decision. Look at what has happened in just one ongoing case.

Old Testament Story Forbidden

In C.H. ex rel. Z.H. v. Oliva, a panel of the U.S. Court of Appeals for the 3rd Circuit unanimously ruled that a public school was correct in prohibiting a first-grade boy from reading a story derived from the Bible. This case will soon be in the news again because the court has decided to rehear it en banc.

His teacher had told Z.H that he could pick a story to read to the class if it was not too long or complex. Z.H, who is Christian, picked a story that, in its entirety, read as follows:

"Jacob traveled far away to his uncle's house. He worked for his uncle taking care of sheep. While he was there, Jacob got married. He had 12 sons. Jacob's big family lived on his uncle's land for many years. But Jacob wanted to go back home. One day, Jacob packed up all his animals and his family and everything he had. They traveled all the way back home to where Esau lived. Now, Jacob was afraid that Esau might still be angry at him. So he sent presents to Esau. He sent servants who said, "Please don't be angry anymore." But Esau wasn't angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again."

That's it. There was no reference to God, Jesus, or the Bible.

The teacher agreed that the story met her conditions, but said that Z.H. could not read it to the class "because of its religious content." When his family complained, the principal said that reading the story "was the equivalent of praying and might upset Muslim, Hindu and Jewish students." Yes, the principal thought that Jews and Muslims (who, like Christians, accept the Old Testament) might be upset if someone simply read a story from the Hebrew Bible. As for praying, the story was no more a prayer than any of Aesop's fables.

The principal added that "perhaps C.H. should consider removing Z.H. from public school." That take-it-or-leave-it approach gave neither appropriate respect to different faiths nor a truly realistic alternative (since the state did not provide tuition vouchers). So the family sued.

The 3rd Circuit panel agreed that, under the First Amendment, the school should not allow the boy to read this story. Although Z.H. did not tell his fellow first-graders that he was reading from a cartoon-illustrated book entitled The Beginner's Bible, the court pontificated that "other students might recognize that presentation as a story from the Bible." And that would be wrong.

The court said that a school must retain "the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with 'the shared values of a civilized social order,' or to associate the school with any position other than neutrality on matters of political controversy." The story of Jacob and Esau does not involve drugs, sex, or politics, so its message of brotherly reconciliation must be "inconsistent with 'the shared values of a civilized social order.' " This first-grader was a real troublemaker!

What if the teacher had said that Z.H. could read a story, and the boy had chosen to read from a Disney book based on the movie "Hercules." Would the school have objected? The tale of Hercules necessarily involves reference to the ancient Greek gods, who, lest we forget, represent another religion.

Must the school also ban Hercules, or does it only violate the First Amendment to read stories from within the Judeo-Christian tradition? Is it permissible to read a story about the patience of Penelope (from the "Odyssey" ), but not a story about the patience of Job (from the Old Testament)?

Or is there a way to let students tell each other stories without the school's imprimatur attached to every tale? Couldn't the teacher set down rules about the time, manner, and place for story telling and then let the first-graders talk?

In the same way, can't the adults write regulations for public property that let us communicate all our seasonal celebration? Then there could be crh ches and menorahs and big plastic Comets and Cupids not because our government endorses any one of them, but because in our free society we welcome opportunities to hear the voices of all citizens.

Ronald D. Rotunda is the Albert E. Jenner, Jr., Professor of Law at the University of Illinois College of Law.

Art credit:

Renata Roberts

LANGUAGE: ENGLISH

LOAD-DATE: January 5, 2000

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