• Mario Nicolais

Merry Kwanukah! The holiday season legal conundrum

When Thanksgiving gives way to December, frantic shopping expeditions, decorative lights, relatives at airports, office parties and an extra 10 pounds due to gift baskets and cookies, the legal community often looks back fondly to the gift that never stops giving: debate over the place for religion in the public square.


On one side is the political-correctness crowd warning that any religious display will offend all other religions, or non-religions as the case may be, and urging that a cold, grey season void of any visual, musical, or olfactory cues is best suited to maximize our aggregate utilitarian content.

On the other side are the merry revelers, busily spreading joy and warmth and eggnog, who believe that if only the public resource was put to use promoting their vision, everyone could enjoy the same tinsel-draped winter wonderland. At least as long as it wasn’t ruined by merry revelers from another culture, with different traditions and celebrations, believing the same public resource would be best used aggrandizing their worldview.


And therein is the fundamental dilemma.


It is kind of the Rubik’s Cube the legal world picks up and debates once a year. Where do you draw the line when it comes to the First Amendment’s Establishment Clause?


The granddaddy decision issued by the United States Supreme Court is Lynch v. Donnelly. The season-appropriate reference, though, is The Nativity Scene Case. In 1984, the court reviewed the longstanding tradition in the town of Pawtucket, Rhode Island, to display a Christmas tree, a banner reading “Season’s Greetings,” and a nativity scene. Conflict over the propriety of a well-lit coniferous tree aside, the attention, as always, was on the baby.


Asking that the city be permanently enjoined from including the nativity in its holiday décor, the plaintiffs argued that such inclusion violated the aptly named Lemon Test. It entangled the city too extensively with one set of religious beliefs without a sufficient secular purpose to overcome the effect it had in advancing a single religion.


On a side note, it does seem deliciously ironic that a scene depicting three kings bearing gifts would be decided by nine justices bearing (metaphorical) gavels. That’s a lot of wise men and women fretting over a newborn plastic replica.


Predictably, the members of court disagreed 5-4.


Upholding the city’s annual right to put up its display, the court found insufficient evidence to establish a “purposeful or surreptitious effort to express some kind of subtle governmental advocacy.” More notably, Justice Sandra Day O’Connor’s concurrence expounded on the Endorsement Test:


“Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community … a law that fails this test is found to be unconstitutional because it ‘endorses’ religion or religious beliefs in such a way that it tells those who agree that they are favored insiders and those who disagree that they are disfavored outsiders.”


Given that proclamation, maybe during this time of year it is best for us each to focus on the message the man the baby would become delivered, regardless of the medium or display: We are none of us outsiders, we are each members of one, single human family. As such, we must all love one another.


I know, I know. It’s a lot to ask. Peace on Earth and all.


In the meantime, at least we can all agree to wish everyone a Happy New Year! Or belated Rosh Hashanah and Hijri. Or early luck in the Year of the Monkey.



Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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