Friday, December 09, 2005

 

Judge Alito Proves Unreliable With Plastic Reindeer Rule


The conservative Christian movement to put Christ back into Christmas thinks it has a new champion, Supreme Court nominee Judge Samuel A. Alito Jr. Conservative groups are unleashing a wave of ads, radio commercials, and email salvos praising his consistent support of religious expression. One commercial says he has "ruled against the ACLU's attempt to scrub away our religious heritage."

Certainly Christmas should be saved, but before we shift our allegiance from Rudolph and the other groups who have been the mainstay in the past, perhaps we should take a closer look at the Judge’s actual cases. This will involve a little jurisprudence, but hey, this site is supposed to provide a learning experience. First, the establishment clause. “Congress shall make no law respecting an establishment of religion…” Sure, it says “Congress”, but in 1947 it was discovered that the due process clause of the 14th amendment makes the establishment clause applicable to the states and all its little sub entities as well . So all those local Christmas displays were suddenly a real problem. We can all agree we can’t have every little town going around establishing a religion. That would be OK with a lot of folks if it was the one true religion, but you can’t count on that, so... no establishing.

So when is that manger scene or menorah “establishing”? It turns out to be when the display pushes one religion over another, or over secular holiday joy. “Pushing” was elucidated in a line of cases ending with Allegheny County v. ACLU, the 1989 decision applying the "plastic reindeer rule" of Lynch v. Donnelly. If all you have in your display is a manger, that’s clearly pushing. However, you can cleanse the scene of push by throwing in secular stuff like a Christmas (Holiday?) tree, a Santa, or a plastic reindeer. Thus the name of the rule. That evidences that you go both ways.

OK, we are ready for ACLU v. Schundler, Judge Alito’s third circuit review of Jersey City’s display. The city had for many years put up a display of a manger and a Christmas tree. The district court saw pushing and issued an injunction, which the appeal court upheld. The city then added large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on a tree. A bit of overkill, but by then they were probably sick of the whole thing. Judge Alito said the first injunction was correct, but ruled that the added stuff had satisfied the plastic reindeer rule and the display was now OK. So there you have it. His reliance on the plastic additions is troubling, as it looks like the judge wasn’t all that solid on the defense of Christmas. If he was, you would think he would have gone for the pure manger scene.

There is no question where the public stands. In a Gallup poll, 88% of the respondents thought it was a good idea to wish people "Merry Christmas" even at the risk of offending the ACLU. House Speaker J. Dennis Hastert has changed the name of the chamber's "holiday tree" back to "Christmas tree". [No word yet on "American fries"]. The American Family Association is urging a boycott of Target stores for omitting the word "Christmas" from their ads. Stung by the attack, a Target spokeswoman claimed there was "no trend or intent to ban the use of Christmas" in holiday advertising. Wal-Mart is under attack for the way its web site handles searches for "Christmas", and there are reports of greeters not wishing shoppers "Merry Christmas". An unnamed and ungendered spokesperson admitted that the "greeting issue" was a relief from the usual focus on wages and benefits. Their web site does clarify the "growing misperception" regarding this: "Wal-Mart would like to clarify that it has no policy that prohibits an associate from wishing customers “Merry Christmas.”

Comments: Post a Comment



<< Home

This page is powered by Blogger. Isn't yours?