December 12, 2012 10:44:30 AM
Susan Estrich -
Christmas in my home city of Santa Monica is different this year. It used to be that there were elaborate displays depicting the birth of Jesus in the big public park by the ocean. I've always believed that Christmas is a major religious holiday, and the display reflected that. According to people who know more about such things than I do, the large dioramas told the story of Jesus' birth according to the Gospels of Luke and Matthew.
That is precisely what non-Christian groups objected to. So the Santa Monica city council responded, initially, by saying there would be a lottery for who got to showcase their faith -- or lack thereof -- in the park. I didn't pay much attention to the displays last year, but apparently they were enough to convince the city council to give up on the lottery and instead adopt a rule that there would be no religious -- or anti-religious -- displays in the public park.
And, of course, that led to a lawsuit, which the city won. There may or may not be something unconstitutional about a religious display in a public park, but as a professor of First Amendment law, it's hard to see the case that it's unconstitutional not to have a display. The court agreed, and this year there is no display -- of the nativity scene, anyway. There have been plenty of public displays of anger, many of them directed at those terrible atheists who are ruining Christmas.
I decided a long time ago that even though I think Christmas is a religious holiday, even though my childhood is full of memories of feeling different (and lesser) in places where it should not have mattered (like public school, where the rule that the girl with the longest hair got to play Mary in the school play was abandoned my year because -- consider the irony -- it would be wrong to have a Jewish girl play Mary), I don't fight about creches in public places. It's not worth the backlash, not worth all the angry letters about taking the Christ out of Christmas (I believe in doing just the opposite).
But I can't help but speak out about the ugliness of the debate in the city where I live. Almost every day, I pick up a newspaper or turn on the radio and hear another attack on the godless atheists who are supposedly propagating hate by asking that public parks not endorse any religion. Just to be clear: It isn't just Christians launching the attacks. The one that caught my eye recently in a Los Angeles paper was written by a rabbi who used it as an opportunity to defend the country's religious roots against the God-forsaken atheists.
The First Amendment includes two key clauses. One protects the right of every American to the "free exercise" of his or her religion. The other prohibits a government "establishment" of religion. Together they reflect a philosophy that has served us well over the past two centuries: that the best protection for religion and religious people is to give the individual both the power and freedom to practice as they choose, and to give the government neither. The idea that not having a religious display in a public park threatens religion is, to me, ludicrous. Christianity is strong enough in Santa Monica to survive the threat of a handful of atheists. There are many, many private places -- shopping malls a block away, churchyards, front yards and the rest -- where the birth of Jesus is celebrated.
As I write this, Jews are celebrating Hanukkah. The way I learned my Jewish history, Hanukkah is actually a pretty minor holiday and would be treated that way if it fell in any month other than December. But in an effort to see that their children don't feel left out, many Jews treat Hanukkah with more attention than the "big" holidays that fall in months like September and October. That's their choice -- another aspect of religious freedom -- although I have to point out that there really is no such thing as a Hanukkah bush.
But I don't need to see a menorah in a public park to remember that I'm Jewish. And it's hard for me to see the hardship suffered by those who have to look elsewhere for a creche -- or simply put one up in their own front yard.