Hanna: Symbols of the Season

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(Host) With the holiday season now underway, cities and towns all over Vermont and elsewhere are putting up holiday displays to commemorate the season. Commentator and Vermont Law School Professor Cheryl Hanna has been thinking about whether – or not – these displays are legal.

(Hanna) So let’s play, Is it Constitutional? The Holiday Edition.

Here’s your first question:

Suppose a city wants to put a display of Santa Clause and his reindeer in the town square. The First Amendment says that the government shall pass no law respecting an establishment of religion. Would Santa be constitutional?

The answer is:

A) Of course Santa’s constitutional! The Founding Fathers all believed in Santa Clause and, parenthetically, so should all Americans.

B) Yes, Santa’s constitutional, but only if he is wearing the Star of David around his neck, the reindeer have Kwanza blankets on, and the sleigh has a bumper sticker that says “Dog is My Co-Pilot.”

C) Yes, Santa’s constitutional because despite the fact that Santa’s name originates from the Christian Saint Nicholas, everyone knows that Santa is just a symbol of consumerism and corporate greed, which is perfectly fine for the city to promote. Or

D) I have no idea.

If you answered D, you are correct! Not even the United States Supreme Court knows exactly when Santa passes constitutional muster.

The central question the Court tends to ask is whether the primary purpose of the display is to promote religion, or whether the display is primarily secular. The Court often asks what the reasonable observer would think, forgetting that religion, like beauty, is often in the eye of the beholder.

And no one can really figure out what the major cases say. In one case, a crèche was part of a larger holiday display that included a Christmas tree, a Santa Claus house, cut-out figures of a clown, a dancing elephant, a robot, and a teddy bear. Because robots and teddy bears were not among the original visitors to baby Jesus, it was clear, the Court held, that no reasonable person would believe that the city was promoting religion.

However, four otherwise reasonable justices dissented.

And in a second case, the Court found a nativity scene placed on the steps of the county court to be unconstitutional. In this case, there were no clowns or dancing elephants, although there was a sign that said “Glory to God in the Highest.” But four justices thought that was okay. And then a little further away from the nativity scene was an 18-foot Hanukkah menorah, placed next to a 45-foot Christmas tree. No problem with that.

So it seems clear that the Court has left considerable room for towns to put up these displays, despite objections from atheists and secularists who argue any public symbol that is even remotely religious in its meaning should be banned.

Despite the fact that the Court seems quite open to religious displays, if I were a town manager, I’d have on hand plenty of robots and dancing elephants to make constitutional an otherwise pretty obvious attempt to send a religious message to the community.

And swaddling baby Jesus in a shirt that says “Religious Freedom for All” wouldn’t hurt either.

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