Signs of Good Cheer

SIGNS OF

GOOD CHEER

    Believe it or not, in the aftermath of the September 11 terrorist attacks, someone is wanting to remove a "God Bless America" sign displayed in front of an elementary school in California. In response, the Rocklin Unified School District in California has refused to take the sign down.

    However, in November 2001, Eastwood High School in Texas, when presented with a student letter mentioning that some people might be offended by the "God Bless America" sign on the school's marquee, decided to remove the sign and to replace it with a sign reading "United We Stand"--a phrase that fails to mention God.

    These are two of the several examples that have arisen in news reports since September 11, 2001, of one or a few persons demanding that "God Bless America" signs be taken down from public school marquees.

    In Appalachia, there is the following example reported in the news: the Appalachian Pagan Alliance has demanded that the Buncombe County, North Carolina school system remove a "God Bless America" sign displayed outside North Buncombe High School, and place another sign in its stead with a message reading "May All Gods Bless America"--or "Bless America" (with the word "God" left out).

    And in Wisconsin, the challenge to "God Bless America" signs has spilled over into Christmas, even touching the Christmas holiday. Despite that state's policy allowing people to hang handmade Christmas ornaments on the state capital's Christmas tree, without any restriction as to the message on the ornaments, some people who want to place "God Bless America" ornament(s) on the state tree are being told they cannot--because, according to a news report, the state gives its clerks the discretion as to which ornaments they select, and a clerk or clerks has decided not to allow any religious ornaments on the tree.

    Apparently, the trend is to try to remove Christian signs, or signs that, while not openly Christian per se, have a Christian connotation or are somehow associated with Christianity--whereas, the irony is, some of the same or like-minded people demand that signs displaying their own religious message must be put up--and put up with. Yet, they are not willing to concede the same right to other people, who want to display Christian-associated signs--of which the "God Bless America" sign is one example.

Another Example for Christmas

    A case was recently decided this summer (July 2, 2001) that illustrates this point. In Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir.2001), the following scenario developed involving this city's Christmas display (which included a creche, or nativity scene, plus items that were entirely secular):

"Every year, the City and County of Denver ("the City") erects a holiday display on the steps leading up to the east entrance of the City and County Building ("the East Steps"). The East Steps 'are the primary entrance to the City and County Building, . . . the primary access . . . into the second floor rotunda area of the building.' [* * *] The 1999 display included a creche, tin soldiers, Christmas trees, snowmen, reindeer and other animals, an array of lights, and a shed containing Santa Claus and his elves. [* * *] The display also contained a large sign with the message "Happy Holidays from the Keep the Lights Foundation and the sponsors that help maintain the lights at the City and County Building,' situated to the far right of the display ("Happy Holidays sign"). The Happy Holidays sign, which was built by the City's carpentry shop using public funds, listed six corporate sponsors. [* * *] The sponsors' contributions to the non-profit Keep the Lights Foundation were used to reimburse the City for part of the cost of the display. [* * *] The display was surrounded by a fence [. . . .] [* * *] The fenced-off area occupied more than two-thirds of the East Steps' total square footage, leaving open a broad central corridor to allow public access to and from the building. [* * *]"

"On November 12, 1999, the plaintiffs wrote a letter to Defendant John Hall, the Director of Public Office Buildings for the City and County of Denver, requesting permission to place a sign 'inside this year's Christmas display area' and quoting the text of the proposed sign ('Winter Solstice sign') as follows:

At this season of

THE WINTER SOLSTICE

may reason prevail.

There are no gods,

no devils, no angels,

no heaven or hell.

There is only

our natural world.

THE "CHRIST CHILD" IS

A RELIGIOUS MYTH.

THE CITY OF DENVER SHOULD

NOT PROMOTE RELIGION.

"I believe in an America

where the separation of church and state

is absolute."

John F. Kennedy--1960 Presidential

campaign.

PRESENTED BY THE FREEDOM

FROM RELIGION

FOUNDATION"

"[* * *] On November 28, 1999, having received no response from Denver, Ms. Wells placed the Winter Solstice sign 'on the steps of the City and County Building inside the area fenced off for the City's display.' [* * *] Written on the back of the sign was the Eighth Commandment: 'Thou shalt not steal.' [* * *] Denver removed the sign the following morning." 

Wells v. City and County of Denver, 257 F.3d at 1136-1138 (internal citations and footnotes omitted).

    After placing their sign in the city's Christmas display, the Plaintiffs, on December 13, 1999, sought "to compel the City 'to allow the Plaintiffs to exhibit their winter solstice display on the steps of Denver's City and County Building within the fenced-off area where Defendants' Christmas holiday display is exhibited for as long as the latter display is on exhibit.'" Id. at 1138 (citation omitted). The United States Court of Appeals, Tenth Circuit, however, did not agree and ruled that the City did not have to allow the display of the Winter Solstice sign.

    The court rejected Plaintiffs' contention that their sign must be included on free speech grounds. The Plaintiffs' had the perception that the City's sign was an expression by corporations. However, the Court of Appeals (PAUL KELLY, JR., Circuit Judge, writing the opinion of the court) said that "Denver owns each component part of the display.  [* * *] In Denver's view, the display is the City's message to the community.  [* * *] On the other hand, Ms. Wells and the FFRF contend that the display is merely an assortment of private speech by corporations that have paid for the privilege. [* * *] Plaintiffs' characterization of the display is not supported by the record." Id. at 1139 (internal citations omitted).

    It doesn't matter what one or a few people misperceive about the sign, its message, or its sponsor; the standard to go by is the perception of an informed and objectively reasonable observer.

    As the court said:

"Even assuming, arguendo, that 'listeners' perception' is one relevant factor, our consideration of that factor would be limited to the perception of an informed and objectively reasonable observer. Cf., e.g., Good News Club v. Milford Cent. Sch., ____ U.S. _____, 121 S.Ct. 2093, 2106-07, 150 L.Ed.2d 151 (2001) (rejecting subjective, speculative listeners' perception argument as 'a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive') (emphasis added). . . ." 

Wells at 1142.  (To read about the Good News Club v. Milford Central School case (included in the Belcher Foundation Christian Law Library), click here.)

    The inclusion or noninclusion of the Winter Solstice sign and the makeup of the City's Christmas display should not be determined by "a modified heckler's veto" (emphasis added). Anyone can think anything (including wrong perceptions), but just because someone complains (no matter how incorrectly they perceive the situation) doesn't mean that the government automatically ought to cave in to their demands.

    The City already had a policy in place to determine the outcome of the situation--the City's ban on unattended displays by private individuals (as opposed to the City's own display, which included the nativity scene and the "Happy Holidays" sign). Therefore, there was a government guideline to follow.

    As the court noted:

"We recognize that Ms. Wells and the FFRF initially sought access only to the fenced-off area, [* * *] and that they actually installed the Winter Solstice sign inside the fence. [* * *] Nonetheless, the record shows that for the purpose of Plaintiffs' 'as applied' challenge to the unattended display ban, the relevant forum encompasses the entire East Steps, whether fenced-off or not. See Aplt.App. at 49 ('[W]e don't even want [the Winter Solstice sign] included in [Denver's] display. All we want to do is have the right to post our sign unattended on the steps . . . .") (statement by Plaintiffs' counsel at hearing) (emphasis added)." 

Wells v. City and County of Denver, at 1146 (some internal citations and footnote omitted).

The court went on to say:

"Upon a careful review of the entire record, we agree that Denver does indeed have a policy that prohibits unattended displays on the East Steps, and we hold that this policy is content-neutral both on its face and as applied. As to the existence of the policy, Plaintiffs have presented no evidence to counter Mr. Hall's testimony, given under oath, that Denver's unattended display ban has been in effect since at least 1985. Aplt. App. at 92, 97." 

Wells at 1147.

[* * *]

"The policy was not clearly implicated until the hearing on December 23, 1999, when Plaintiffs' counsel clarified: 'we don't even want [the sign] included in [Denver's] display. All we want to do is to have the right to post our sign unattended on the steps of city hall.' Aplt.App. at 49. But cf. id. at 13 (requesting, in Complaint, that the court order 'Defendants to permit the Plaintiffs to display their sign unattended in the fenced-off area on the steps of Denver's City and County Building") (emphasis added)."

Id. at 1147, n. 9.

Then the court decided:

"In sum, we hold that Denver's ban on unattended private displays is a content-neutral regulation of the time, place, or manner--in this case, manner--of speech, and that it is therefore consistent with the First Amendment."

Id. at 1149.

Furthermore:

"There is no other evidence that the City has permitted private, unattended displays at the City and County Building, and there is no evidence that the City has ever permitted such displays on the East Steps." 

Id. at 1150-1151. 

[* * *]

"As to the application of the policy, Plaintiffs have presented no probative evidence to counter Mr. Hall's testimony that the policy is and always has been enforced in a uniform, non-discriminatory manner, without regard to content or viewpoint." 

Id. at 1151.

As for the religion clause challenges, the court had this to say:

"Plaintiffs' remaining constitutional arguments are somewhat elusive. The underlying premise for all three challenges is that the Winter Solstice sign is 'religious in the sense that atheism is a belief system that competes with theistic religions . . . ." Aplt. Br. at 20. Plaintiffs cite no legal authority for this proposition, but as we did in Otero v. State Election Bd. Of Okla., 975 F.2d 738, 740 (10th Cir.1992), we will assume, without deciding, that atheism is a religion for First Amendment purposes. Next, the plaintiffs claim that:

By keeping [the Winter Solstice] sign off the steps of City [sic] and by imposing . . . restrictions on it that do not apply to the creche [presumably, the unattended display ban], the City is preferring Christianity over non-religion and theism over atheism. This abridges Wells' right . . . to free exercise of her religious beliefs under the First Amendment and is a denial of equal protection under the Fourteenth Amendment. It is also an unconstitutional establishment of religion under the First Amendment because it violates the second prong [of] the Lemon test . . . .

Aplt. Br. at 20-21 (footnote omitted); cf. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (articulating three-part test for Establishment Clause challenges: first, the governmental action at issue 'must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster an excessive government entanglement with religion') (internal quotations and citations omitted). Beyond Lemon, Plaintiffs cite no legal authority for these assertions." 

Wells at 1152.  (For United States Supreme Court Justice Rehnquist's excellent critique of Lemon v. Kurtzman, read his Dissent in Wallace v. Jaffree (1985), included in the Belcher Foundation Christian Law Library.)

    The U. S. Court of Appeals, Tenth Circuit, said this about the City's display policies:

"Because the challenged policies are both generally applicable and neutral as to religion, the [plaintiffs'] free exercise claims must fail. See Shaffer v. Saffle, 148 F.3d 1180, 1181-82 (10th Cir.1998) (holding that religion-neutral law that is generally applicable does not violate Free Exercise Clause, despite incidental effect on religious practice); [* * *] The plaintiffs' claims under the Establishment Clause are also unavailing. [* * *] The fact that the present plaintiffs seek to add to the City's display, rather than to dismantle it, makes no difference to the Establishment Clause analysis. Cf. Snyder, 159 F.3d at 1233 (rejecting Establishment Clause claim by individual seeking 'equal public access to a legislative body's program of invocational prayers'). With respect to the unattended display ban, Plaintiffs fail on each prong of the Lemon test. [* * * ] ...the unattended display ban has a secular purpose. There is no evidence that the policy's 'principal or primary effect' either 'advances [or] inhibits religion,' id. (citation omitted), nor does it 'foster an excessive government entanglement with religion.' [* * *]" 

Wells at 1152 (some internal citations omitted).

With regard to equal protection, the court held:

"Plaintiffs' equal protection claims are also without merit. Contrary to Plaintiffs' characterization, the display, including the Happy Holiday sign, is the City's speech. As explained, the plaintiffs have no First Amendment rights to dictate the content of that speech. Thus, there is no evidence that the plaintiffs have been 'intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'  [* * *] Without such evidence, the equal protection claim must fail." 

Id. at 1153 (internal citation omitted). 

    The characterization of the Christmas display as promoting Christianity, on the basis of its inclusion of a nativity scene in the total display, in order to then say that if theism was to be promoted, atheism (an alternate religion) must also be recognized through the inclusion of the Winter Solstice sign either in or near the Christmas display, was a characterization of the matter that the Court of Appeals did not accept.

    The court basically held that the characterization was a misperception. The City's Christmas display did not promote Christianity just because it contained a nativity scene. In any event, the City's ban against unattended displays by private individuals precluded anyone from putting up their own signs on the City's steps. So, the City's Christmas display remained standing, whereas the Winter Solstice sign put up by private individuals could not remain there, according to the court's ruling.

Keep Up the Christian Signs

    For someone to object against Christian-related signs and displays, like the Denver Christmas display or the "God Bless America" signs, and, simultaneously, to demand that signs promoting another message (such as the professed atheism of the Winter Solstice sign) be left standing while Christian signs are removed, is employing a double standard. One cannot logically hold the position that the God Bless America signs must go down, but Winter Solstice signs must go up. The end result of such a double standard is that people who display the Christian-related signs are discriminated against, whereas people who display signs like the Winter Solstice sign are allowed to propagate their message without contradiction. One group (e.g., Winter Solstice sign supporters) demand that their sign be displayed--but at the expense of the Christian displays, which are challenged as "establishments of religion"--as if an atheistic sign is not. Then, God Bless America signs are challenged as being "establishments of religion", too--and the end result may well be chaos--with hundreds of challenges to God Bless America signs (or similar displays such as ornaments on a state Christmas tree) like the ones in California, Texas, North Carolina, and Wisconsin--and to other Christian-related signs, as well, all across the country.

    BUT--if the Winter Solstice case is any indication, the courts may not agree with such challenges to Christian signs. The court did not agree in the "Winter Solstice sign" case that the Christmas display was an establishment of religion.

Christians, too, have the right to display signs of good cheer!

KEEP UP THE CHRISTIAN SIGNS

 

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