The Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, has petitioned the U.S. Supreme Court to review its case challenging New York City's ban on the display of the nativity in its public schools during Christmas. The City policy expressly discriminates against Christians by allowing the menorah to be displayed as a symbol of the Jewish holiday of Chanukah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but does not allow a crèche or nativity scene to be displayed as a symbol of the Christian holiday of Christmas.
This past February, a sharply divided three-judge panel of the U.S. Court of Appeals for the Second Circuit, sitting in New York, ruled that this policy was constitutional. In a lengthy, 46-page dissent, Circuit Judge Straub stated, "It is my view that the policy of the New York City Department of Education to arrange for the children to celebrate the holiday season in schools through the use of displays and activities that include religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, but starkly exclude any religious symbols of the Christian holiday of Christmas, fails under the [Constitution], both on its face and as applied."
The policy applies in all of the primary and secondary public schools in the City of New York, which has the Nation's largest public school system. The challenge was brought on behalf of Andrea Skoros and her two minor children, who are students in the New York City school system.
Richard Thompson, President and Chief Counsel of the Thomas More Law Center, called the City's policy a blatant example of religious bigotry, and the panel's decision another outrageous example of federal courts discriminating against Christians. Said Thompson, "Many federal courts are using the contrived endorsement test to cleanse America of Christianity. This unprincipled test allows judges to impose their ideological views under the pretext of constitutional interpretation. Thus, the majority opinion says it is legitimate to discriminate against Christians in the largest public school system in the country, with over one million students enrolled in its 1,200 public schools and programs. The Supreme Court needs to review this case."
In its petition, the Law Center is asking the Court to "abandon the endorsement test because it is unworkable and incapable of consistent application." The Law Center points out that several justices on the Court are critical of the test and see a need for overhauling the Court's Establishment Clause jurisprudence. For example, Justice Thomas has stated, "The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections." Justice Kennedy has noted that "the endorsement test is flawed in its fundamentals and unworkable in practice. The uncritical adoption of this standard is every bit as troubling as the bizarre result it produces." Justice Scalia and former Chief Justice Rehnquist have been similarly critical. In fact, the divided panel decision from the Second Circuit demonstrates that the test is incapable of consistent application.
Robert Muise, the Law Center trial attorney handling this case, commented, "Unfortunately, the endorsement test has been used by liberal judges to attack anything that is considered Christian. Now that Justice O'Connor, the author of the endorsement test, is no longer on the Court, and with the additions of Chief Justice Roberts and Justice Alito, two conservative Justices, we are hopeful that the Court will accept this case for review and use it to abandon its ridiculous, anti-Christian jurisprudence."
In the petition, the Law Center also claims that New York City's policy is unconstitutional because it is hostile toward the Christian religion, arguing that "the Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any." The Law Center notes that its clients do not seek removal of religious symbols from the New York City public schools. Such intolerance toward religion is not required by the Constitution. Rather, they merely want the accommodation that the Constitution demands.
Let us pray that all Christians will be able to express their faith in Jesus at Christmas time. "Dearly beloved, The goodness and kindness of God our Savior appeared: not by the works of justice which we have done, but according to His mercy. He saved us by the laver of regeneration and renovation of the Holy Ghost, whom He hath poured forth upon us abundantly through Jesus Christ our Savior: that, being justified by His grace, we may be heirs according to hope of life everlasting: in Christ Jesus our Lord." (Titus 3: 4,7)
Image Source: Nativity by François Boucher, 18th Century