Nativity-bad; Jewish menorah & Islamic star and crescent-good

From the Thomas More Law Center:

Sharply Divided Court Upholds City's Anti-Christian Ban of Nativity in New York City Public Schools

ANN ARBOR, MI — A sharply divided panel of the United States Court of Appeals for the Second Circuit ruled that it is constitutionally permissible for New York City public schools to ban the display of the Christian nativity during Christmas, while permitting the display of the Jewish menorah and the Islamic star and crescent during Hanukkah and Ramadan.

The legal challenge to this policy was brought by the Thomas More Law Center on behalf of Ms. Andrea Skoros and her two children, who attend public elementary schools in New York.

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, called the 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 1200 public schools and programs. This should be a wake-up call for Christians across this nation.”

Judge Straub was equally critical in his dissenting opinion. In his separate and lengthy, 46-page dissent, 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.”

Judge Straub concluded, “I find it clear that the current policy and displays violate the Establishment Clause insofar as a reasonable student observer would perceive a message of endorsement of Judaism and Islam and a reasonable parent observer would perceive a message that Judaism and Islam are favored and that Christianity is disfavored.”

The policy at issue expressly states that the display of “secular holiday symbol decorations is permitted,” and it lists as examples the menorah and the star and crescent. The policy specifically excludes the display of the Christian nativity scene. The City defended its policy by arguing that the menorah and star and crescent were permissible symbols because they were “secular,” whereas the nativity scene had to be excluded because it was “purely religious.” Even though the majority recognized that the City’s argument was fallacious, stating that the policy “mischaracterizes” these symbols, it still upheld the discriminatory ban on the Christian nativity.

Judge Straub strongly disagreed with the majority, arguing that this aspect of the policy was itself a violation of the Constitution. He noted that the nativity scene or crèche “depicts a historical event and thus, has some non-religious aspects to it.” He concluded that the City’s “action in defining a menorah and star and crescent as secular, and a crèche as ‘purely religious,’ is impermissible insofar as it takes positions on divisive religious issues.”

Robert Muise, the Law Center’s attorney handling the case, commented, “This is a shocking decision and Christians should be outraged by it. We strongly believe that the majority decision is fundamentally flawed, as pointed out by the dissent, and we intend to take this fight to the next level. This battle is far from over.”