A local law professor, Andrew C. Spiropoulos, suggests in his article, “RIGHT THINKING: THE RIGHT OF FREE SPEECH FOR COMMUNITIES, that putting a Nativity scene on the courthouse lawn should properly be an expression of the free speech of the community. He admits that the law seems settled that you can’t have such displays unless other viewpoints, religious or secular, are expressed. What seems to bother him mostly is that the nativity scene message gets watered down if you have it standing next to Santa Claus. He states:
“Affirming the right of the majority of a community to publicly express its faith does not deprive any dissenters of the right to express and adhere to their views. The Constitution protects your right to freely speak and worship – it does not protect you from the offensive speech or worship of others.”
The Professor gets it right. I couldn’t agree more. But then he makes his real intentions known and undermines his argument.
“…if you don’t like what the elected government has to say, win office and change the message.”
He doesn’t want just an unwatered down expression, he wants his expression to be the only expression. I recall the First Amendment protects us from the establishment of religion by government. I will defer to the law professor on the current state of the law when he notes that this “endorsement doctrine” has one foot in the grave. But what I can’t defer to is his view that a local government can pick which group gets to use the commons. The Constitution guarantees Free Speech; it doesn’t guarantee Free “undiluted” Speech.
The Professor wants elected officials to be able to put up a Nativity scene and exclude others who have differing or additional views. Isn’t this what the First Amendment is designed to protect us from. What troubles me is the imposition of a viewpoint that dissenters can’t overcome unless they are able to change the public’s mind through an election. Let’s look at this approach in practice:
If you are a Lutheran living in Okarche, Oklahoma, and the local Catholic majority wants to erect a Marian statue on the public commons, and forbids you from putting up a statue of Martin Luther, how would you react?
What if you are a Christian and you live in Michigan in a township that has a Muslim majority, and control of the local government (currently the case in a few instances). The Professor’s position is that the Polish Catholics who founded this area and now find themselves in the minority, can just pound sand when the Muslim City Counsel decides to install a loud speaker at city hall for the five daily prayer calls, and puts a dome and minaret on top of the city hall building. How would you react?
What if you are a Protestant in a local community in Utah controlled by a Mormon mayor who decides to put up a statue of the trumpet blowing Angel Moroni on the courthouse lawn. How would you react?
What if you are one of many Christian groups who don’t recognize Christmas as a Biblically authorized holiday? How would you react? Maybe you wouldn’t react. But it is not hard to see, depending on how the lines are drawn, that any of us can quickly be in the religious minority.
I get that Christians feel denigrated in many ways in contemporary society. I get the point when the Satanists want to put up a statue in the common area of the state capital. It makes you want to take your ten commandments and go home. Better to avoid giving the Satanist a forum. I also get that a nativity scene is not the same interference in government that our founders recognized looking at European history and the entanglement of Church and State. I also get that we have religious expressions entangled throughout our history recognizing our Christian traditions.
What I don’t get is why anyone would want to force his or her symbolism on another person. Forcing anything on someone is an act of power. Placing that power in the hands of civil servants is not an act of charity or a simple expression of one’s beliefs, it is a statement that I am right, you are wrong, and because I am in the majority, I win and you lose. The second the government becomes involved, it becomes about compulsion, not freedom. The compulsion is not that you must enjoy, accept, or even notice the nativity scene. The compulsion is that the other group doesn’t have the opportunity to express their community speech.
These first amendment issues are always about where do you sensibly draw the lines. Why isn’t it an acceptable accommodation of all of our differences to allow everyone to express themselves in the “public common”? That seems fair and reasonable. Either we all get to do it, or no one gets to do it. Maybe the solution is to let communities have the commons for a week or day each year, Christian Nativity scenes at Christmas, agnostics in April, and the Satanists on Halloween. All sensible accommodations should be considered.
The ability for only one group to express themselves in this common area is really more about ego than substance. The Professor is implying that his community group wants to express its viewpoint, but others can’t because they are in the minority. Free speech can be a bitch. It means people get to say and think things you find morally repugnant or stupid or uninformed or untruthful. But all the free expression anyone needs is available everywhere. Put your nativity scene in a shop window, your front yard, the hood of your car, or on your website. Or my preference put it on the courthouse lawn, so long as others have the same opportunity.
I honor and respect everyone’s faith and free speech. These Constitutional protections are important for all of us. You want your constitutional right to bear arms, damn right! You want to express your view that a politician is the spawn of the devil, damn right! You want to put up your Menorah during the Jewish Holiday of Hanukah on the courthouse lawn, if others have the same opportunity, damn right! All freedom loving Americans, whatever your religious or political sensibility, should jealously guard these freedoms wisely enshrined in our Constitution.