Yesterday an article was posted in Yahoo! News discussing the culture wars over displays of holiday ornaments in public spaces such as schools, court houses, and government office buildings. A number of states have passed or are considering passing legislation that makes it okay to use greetings such as “Merry Christmas” and to display nativity scenes, Santa Claus, and Christmas trees when expressing Christmas as a federal holiday or as part of a religion-neutral display. Christmas has been so secularized, according to the article, that states are on edge about facing lawsuits from advocacy groups like the Freedom from Religion Foundation.
But what I particularly found of interest in the Yahoo! News article was a quote by Greta Austin, a professor of religion at the University of Puget Sound. Professor Austin raised the issue not only of how far has America come a a secularized society but also whether secularism could rise to the level of religion. According to Professor Austin:
“Even if you empty the public square of any religious expression, you still get that this ‘secular’ idea, it could be argued, could be like a religion. In other words, then you create a public square in which the de facto religion is secularism.”
Could the Establishment Clause be violated if we cleared out all religious displays from public spaces? I don’t think so. In the preface to his book, “The Establishment Clause: Religion and the First Amendment”, the late professor Leonard W. Levy wrote:
“The establishment clause of the First Amendment (‘Congress shall make no law respecting the establishment of a religion … ‘) does more than buttress freedom of religion, which the same amendment separately protects. Given the extraordinary religious diversity of our nation, the establishment clause functions to depoliticize religion; it thereby helps to defuse a potentially explosive situation.”
One reason a religion vacuum wouldn’t violate the Establishment Clause is that by prohibiting all religious displays, government ensures that it is not honoring, considering, or holding in any esteem the creation or existence of any practice expressing the belief in or worship of “God” or “gods” or favoring any specific belief system otherwise steeped in some ethical code. In short, government avoids a minefield by not laying one in the first place.
Another reason why a religion vacuum wouldn’t violate the Establishment Clause goes specifically to Professor Austin’s concern about secularism becoming a religion. A secular space, if you will, is by definition devoid of religious attachments. There is no attachment to a church or any practices resembling the worship of deities. Under a true secular environment, government would be showing respect for the establishment of empty space devoid of religion, a scenario that should be promoted if we are concerned with equity and fairness to Americans professing or subscribing to no religious beliefs.
States are attempting to make public spaces religious behind the barrier of secularism, but that barrier is transparent. Displays are another form of messaging and as such use public resources to proselytize a religious belief system. These attempts on the part of the states violate the Establishment Clause.