Government-sponsored religious displays: transparent rationalizations and expedient post-modernism.

• Author: Laycock, Douglas
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

The founding generation said that government is not a competent judge of religious truth, (1) and for half a century now, the Supreme Court has applied that principle to government speech. Government is not supposed to take positions, pro or con, on truth claims about religion. Government must resist its recurring temptation to proclaim that Christianity is true.

This rule has always encountered vigorous resistance in some parts of the country and vigorous dissent on the Court. There may be five votes to overrule the whole line of cases restricting passive religious displays. But Justices do not always resort to overruling; they have other ways of dealing with their least favorite cases. (2) They may restrict or eliminate standing. (3) Or they may simply manipulate the findings of fact so that they never find the rule to have been violated.

This paper examines recent developments in the strategy of manipulating or recharacterizing the facts. In a sense, this paper is an exercise in belaboring the obvious. When Justices and government lawyers defend government-sponsored religious displays by claiming that the display is really secular, the argument is often rather conclusory. But the response is often even more conclusory. "Just look at it. See! It's religious." I will spell out in more detail why these messages can only be understood as religious, and then address the Court's latest theory for avoiding that obvious conclusion.

1. NATIVITY SCENES

   Once the rule emerged that government is not to take positions on religious questions, government lawyers began to argue that religious statements and symbols also have secular meanings, and that, of course, the sponsoring government unit intended only the secular meaning. There is much sham litigation of this sort, and sometimes the Court goes along.

   Consider the Christian nativity scene, or creche. It is so familiar, and so much a part of a holiday that has been used and abused for many other purposes, that many Americans probably never think about what it actually depicts. But Christians of moderate or greater seriousness do think about it, and non-Christians who care about government neutrality also think about it. The nativity scene is at the very least a depiction of a man, a woman, shepherds, and richly dressed men with crowns kneeling in worshipful postures and attitudes around a baby.

   Of course we all know who these figures are supposed to be. The baby, often depicted with a halo, is the central figure in the Christian story. But suppose we pretend that we do not know who these figures are supposed to be. Is there any other way to interpret this display?

   The figures are worshiping the baby because, according to Christian belief, the baby is the Son of God--actually himself also God--incarnated in human form. Is any other interpretation possible? Well, those who worship the baby could be engaged in idolatry. Or they could be worshiping a false god. Non-Christians, who do not believe that the baby is God or that he represents God, may think that the figures must necessarily be doing one or both of these. But no government that puts up a nativity scene is endorsing the worship of idols or false gods. That would be political suicide. It is socially acceptable to depict the adults in the nativity scene as worshiping the baby because--and only because--the baby is understood to be God.

   The nativity scene thus necessarily depicts the first of the two miracles at the heart of Christianity. The nativity scene depicts the incarnation of God in human form--or as much Christian literature refers to it, the Incarnation with a capital I. (4) Not everyone who casually views or passes by a nativity scene thinks of this miracle, but without the Incarnation, the nativity scene becomes either a meaningless arrangement of figures engaged in some unidentifiable activity (which no one believes), or it becomes a depiction of false worship--a depiction that would horrify its sponsors. If you think about it even a little bit seriously, the nativity scene can only represent the Christian belief in the Incarnation.

   Of course this is not what the Supreme Court or the government said when the first nativity scene reached the Court, in Lynch v. Donnelly. (5) The opinion did seem to concede "the religious nature of the creche." (6) But then it made two moves that recur in these cases. First, the Court said the District Court "erred by focusing almost exclusively on the creche." (7) It was a mistake to focus on the intensely religious display that was the matter in controversy; courts should instead consider only some larger unit that includes the intensely religious display, and consider the larger unit as a whole. (8) I call this the larger-unit argument. When the creche is viewed in its larger context, the Court said, there is "insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle government advocacy of a particular religious message." (9) We can all agree that it was not surreptitious or subtle. It was open and obvious.

   And it was certainly purposeful; the city did not put up the creche by accident. But the Court said it was not a purposeful "effort to express some kind of ... particular religious message." (10) This is the second frequent move: they put it up, but they didn't mean it. I call this the didn't-mean-it argument. Even if they portrayed the miracle of the Incarnation (although the Court never alludes to anything so explicit), they didn't mean that anyone should take it literally as the miracle of the Incarnation. Rather, "[t]he creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday." (11)

   This last sentence is utterly inscrutable. Is the "event" the same as the "origins"--the adults worshiping the baby? Or is the "event" the modern celebration of Christmas, with the adults worshiping the baby as the "origins" of that event? And however that may be, in what sense are these "origins" historical? What is depicted is either miraculous or mythical--either it really was the miracle Christians believe it to have been, or it never happened, which is what the great majority of the world's population believes. If it never happened, then it is not historical. When the Court describes the event as historical, it asserts the truth of at least this part of the Christian story.

   Assuming the event did happen, it seems rather odd to describe a miraculous event as merely historical. But of course Christians who fully believe in the miracle believe that it actually happened and that it happened in historic time. So from a Christian perspective, the event is historical as well as miraculous. The reason it seems odd for the Court to describe the event as historical is that it is historical only if you believe in the miracle. It is very troubling for the Court to announce that a miraculous claim of one religion is true, especially when that religion makes exclusive claims to truth, with the unavoidable implication that all other religions are false. Yet that is what the Court did in Lynch. In the course of trying to minimize the religious significance of the creche, the Court affirmed its belief in the miracle.

2. THE PLEDGE OF ALLEGIANCE

   I have elaborated the religious significance of the Pledge of Allegiance elsewhere, (12) so a summary will suffice here. The Pledge includes a succinct affirmation of faith. In public schools, we ask each child to personally acknowledge the existence of a monotheistic God who is somehow over an entire nation: "I pledge allegiance to ... one nation under God ...." (13)

   Yet the government briefs defending the Pledge denied that it had any religious meaning. The United States argued that the Pledge "is not a religious exercise at all...." (14) Rather, the meaning is merely historical and demographic:

   [T]he reference to God acknowledges the undeniable historical facts that the Nation was founded by individuals who believed in God, that the Constitution's protection of individual rights and autonomy reflects those religious convictions, and that the Nation continues as a matter of demographic and cultural fact to be "a religious people whose institutions presuppose a Supreme Being." (15) Here, the government applies the didn't-mean-it argument to text and not just to nonverbal symbols. Chief Justice Rehnquist accepted these claims, (16) but they do not bear examination. That most of the Founders believed in God, and that most Americans today believe in God, are historic and demographic facts. The rest of the government's allegedly "undeniable ... facts" (17) are denied by nonbelievers, who of course do not believe that either individual rights or a republican form of government reflects, presupposes, or depends on the existence of God. No doubt many believers also doubt or deny these claims about our political institutions.

   But more important here, none of these alleged facts is asserted or implied in the Pledge. It is not difficult to communicate the difference between what I personally believe and what I recognize that others believe, and the Pledge is a statement of the former. It is a personal pledge, an affirmation of what "I" pledge myself to. There is no reference to the Founders or to the majority of Americans or to any other third party, but only to the first person singular--only to what each person saying the Pledge believes.

   Secular reinterpretations of religious symbols and affirmations, as in the government's novel interpretation of the Pledge, have a cost to the religious supporters of government exercises of religion. The government officials and their lawyers who make such arguments, and the judges who accept them, desacralize sacred texts and symbols. But these actors seem to assume that few Americans will take note of their arguments and that no one will take them seriously. The religious...