Are Manger Scenes on Public Property Constitutional?
Manger scenes were routinely shown in public places before the anti-Christian crusade that the Supreme Court unleashed, starting in the 1960s and 1970s, with its anti-God-in-public type of decisions.
Subsequently, the Supreme Court ruled in Lynch v. Donnelly (1984) in a case out of Pawtucket, Rhode Island, that if a manger scene was surrounded by enough reindeers and other secular symbols of the season, the government could allow it on public property. Many of these anti-God cases were initiated by the legal group, the ACLU (the American Civil Liberties Union).
Apparently, the ACLU's favorite Christmas carol is "Away With the Manger." But they're not alone. There's also the Freedom From Religion Foundation (FFRF), which sues to keep crèche scenes from being placed in public venues, as they did recently in a small town in the motor state.
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On 12/16/16, as Liberty Counsel reports, a nativity scene was restored to a park in Menominee, Michigan because of its pro bono "defense to reinstate the City's long-standing Christmas tradition of displaying a Nativity scene in a city park."
They note that the town took down the nativity because of FFRF complaints, but Liberty Counsel intervened, encouraging the town to "add secular items to the display." And so the town plans to reinstate the manger scene.
The question is: Are manger scenes in public places constitutional?
I spoke recently on my radio show, Vocal Point, with Thomas Brejcha, the founder and director of the Christian legal group, the Thomas More Society.
Brejcha told me manger scenes in public are "absolutely constitutional if they're done the right way. The key is that these are privately funded and privately sponsored nativity scenes — that really amount to free speech on the part of private citizens in what we would call a 'traditional or designated public forum.'"
He added, "Our First Amendment is pretty clear about it. If you allow somebody to get up on their soapbox and proclaim their politics, well, you cannot discriminate against another citizen that gets up on his or her soapbox and preaches his or her religious faith. In both cases the content of the speech is free speech and as such is protected by our constitution."
Thus, if political rallies or other examples of free speech are allowed in a public setting, including rotundas in state capitols, then religious speech can't be legally discriminated against in those settings.
According to Brejcha: "It's the denial of free speech that is wrong and not that the folks who want to put up a nativity scene. [A nativity scene] is a kind of symbolic speech — very powerful speech — and it ought to be promoted."
What does the nativity scene communicate? That God so loved the world that He gave His only begotten Son that whosoever believes in Him shall not perish but have ever lasting life.
The Thomas More Society is now working with a group that is also out of Chicago, the American Nativity Scene (ANS). Brejcha told our listeners about the ANS: "They're blessed to have a benefactor who anonymously provides nativity sets to anyone who will agree to put them up and take care of them in any public space."
The provision of a professional looking, life-size manger scene is made free to those willing to commit to getting it up in a city square or even better yet, a place near or on the state capitol rotunda. ANS's website explains the logistics, including the need for a local carpenter to make the stable for the set and for its off-season storage.
The ANS website states that during the Christmas seasons of 2014 and 2015, they "shipped over 120 Nativity Scenes to 24 different states across this great country ... Many of these Nativity Scenes were placed in public parks, libraries, farm roads and government buildings."
Tom Brejcha said they are focusing on getting as many manger scenes as possible at state capitol buildings in future Christmases. So far, through Christmas 2016, ANS has been able to get such nativity sets in 11 state capitols, with 39 to go. He also said that if anybody hits any legal snag from the atheist-type groups, the Thomas More Society will defend them for free.
Thankfully, other Christian legal groups, such as Liberty Counsel, also provide legal assistance on religious liberty matters.
ANS notes a recent poll by The Washington Times found that 72 percent of Americans "agreed that religious scenes displayed on PUBLIC property by PRIVATE individuals should be allowed as our constitution allows." (Emphasis theirs).
Thus, while the atheist activists and their sympathizers may try to sing "Away WITH the Manger," Lord-willing, in future years we may just see more privately sponsored manger scenes popping up in various cities and towns (including state capitols) to remind us of the true reason for the season.
