Militant atheists at the Freedom From Religion Foundation (FFRF) are threatening to sue St. Bernard, Ohio, over the city’s Nativity scene — a Christmas display depicting the scene of Jesus’s birth in Bethlehem in the Holy Land. If FFRF follows through and files in federal court, that case could result in a historic restoration of religious liberty nationwide.
St. Bernard is a suburb of Cincinnati. For many years, the city has displayed a crèche — i.e., a Nativity scene — during the Christmas season. It is accompanied by non-biblical seasonal holiday displays as well, making this outdoor crèche similar to the one the Supreme Court upheld in its 1984 case Lynch v. Donnelly.
However, in 1989, the Supreme Court moved to the left on this issue, holding by a narrow 5-4 vote in County of Allegheny v. ACLU Greater Pittsburgh Chapter that a crèche erected on the grand staircase of a Pittsburgh courthouse violated the Constitution’s Establishment Clause (which provides that Congress cannot establish a religion, a rule the Court in 1947 extended to state and local governments). In Allegheny, the justices voted 6-3 to allow a menorah and Christmas tree in the park outside the courthouse.
That case was strongly denounced by originalists and conservatives because it invented a brand new standard called the “endorsement test” for the First Amendment’s Establishment Clause. Under this new rule, any government action involving faith or religion is unconstitutional if some “reasonable observer” would believe the government was endorsing religion.
Four justices dissented in Allegheny, with moderate Justice Anthony Kennedy writing the dissent. In it, he argued that this new endorsement test is unnecessarily hostile to religion and not required by the Constitution. The crèche, Christmas tree, and menorah are all consistent with the Constitution, he argued.
Instead, he continued, the true test of whether the government is establishing a religion is whether it officially adopts an actual religious belief as public policy (such as passing a law saying that the bread and wine in communion is the actual body and blood of Jesus Christ), or whether the government is coercing a person to participate in a religious activity that violates his conscience.
In 2014, Kennedy wrote in another Establishment Clause case, Town of Greece v. Galloway, that he still holds the same view he expressed in 1989. But in 2014, Kennedy was writing for a 5-4 majority (including Justice Antonin Scalia). This indicating that if President-elect Donald Trump nominates someone to Scalia’s seat someone in the same mold as the iconic originalist justice, the Supreme Court could very well overrule Allegheny, restoring countless traditional faith-based expressions, traditions, and displays — including Nativity scenes.
One case is currently only one step beneath the Supreme Court — American Human Association v. Maryland-National Capital Park & Planning Commission & The American Legion — could present the justices with an opportunity to jettison the “endorsement test” in favor of the historically grounded “coercion test.” That case, currently before the U.S. Court of Appeals for the Fourth Circuit, involves a decades-old World War I memorial that is being attacked by atheists because it includes a large cross.
Like war memorials, a crèche passes muster under the coercion test because quiet roadside war memorials and Christmas displays don’t coerce anyone to do anything. If you don’t like it, you don’t have to look at it. In a free society people regularly see and hear things they don’t like. That does not mean the Constitution forbids those things.
The War on Christmas continues, but it appears that the tide of that battle may be turning soon.
Ken Klukowski is senior legal editor for Breitbart News and senior counsel at First Liberty Institute, the largest law firm in America exclusively dedicated to protecting religious liberty. Follow him on Twitter @kenklukowski.