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Courts consider fight over Christmas displays

After years of legal assaults on municipal displays of Nativity scenes and Christmas observances in public schools, Christian groups are now mounting court challenges in the other direction.
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Jonathan Morgan handed out candy canes with the story of Jesus to his fourth-grade classmates in Plano, Tex., on Friday. But it took a court order.

After years of legal assaults on municipal displays of Nativity scenes and Christmas observances in public schools, Christian groups are now mounting court challenges in the other direction.

From Mustang, Okla., to Maplewood, N.J., they are filing or threatening lawsuits to win the inclusion of manger scenes in school plays, Christmas carols in school concerts and Christmas trees in public buildings.

"The pendulum has swung completely," said Charles Haynes, a senior scholar at the nonprofit First Amendment Center in Arlington. "There's a push-back by many conservative Christians, perhaps emboldened by the recent election and by the increasing presence of evangelical Christianity in the public arena. They're saying the secularization of our society and public schools has gone too far and become hostility to their religion."

Religious gifts spark controversy
Last year, a school administrator stopped Jonathan Morgan at the door to his classroom because the "goody bag" he had brought to a school party on the last day before Christmas vacation contained candy canes with a religious message attached. Titled "The Legend of the Candy Cane," it said the candy was shaped in a J for Jesus and bore a red stripe "to represent the blood Christ shed for the sins of the world."

This year, the 9-year-old and his evangelical Christian parents went straight to court. They were among four families who persuaded Judge Paul Brown, of the U.S. District Court for the Eastern District of Texas, to issue a temporary restraining order on Thursday securing their children's right to hand out "religious viewpoint gifts" at school-sponsored holiday parties.

The family had some high-powered help. Two conservative nonprofit law firms, the Liberty Legal Institute and the Alliance Defense Fund, took the case free of charge. The Civil Rights Division of the U.S. Department of Justice also wrote the Plano Independent School District last week to say it was investigating its "alleged refusal to permit students to distribute religious messages during school parties and on school property."

Kelly Shackelford, the Liberty Legal lawyer who argued the case, said in a telephone interview that Supreme Court decisions since 1969 clearly have established that students do not give up their free speech rights when they walk through the school door. Expressions of religious faith that would be unconstitutional coming from a teacher in a classroom are acceptable among students as long as they do not "materially and substantially disrupt" school operations, he said.

Restrictions defended
The Plano school district's lawyer, Richard Abernathy, maintained that school administrators can impose reasonable restrictions on the "time, place and manner" of students' religious speech.

"This area is predominantly white, and it's predominantly Christian. Frankly, it's pretty conservative Christian," he said. "We have to be careful, though, that those students who are Hindu or Islamic or Jewish don't have their rights trampled on."

Doug Morgan, Jonathan's father, said his son was a victim of "political correctness spiraling out of control." He noted that the school had informed parents that only white paper plates and napkins — no Christmas red and green — would be allowed at the generic "Winter Break" party.

"They are so determined not to offend anyone," he said, "that we're being silenced and made to feel that what we want to share is not appropriate to share in a public environment."

That is an increasingly common holiday sentiment, said Jay Sekulow, chief counsel of the American Center for Law and Justice, a legal advocacy group founded by the Rev. Pat Robertson.

Twenty or 30 years ago, Sekulow said, the vast majority of lawsuits over Christmas displays were filed by secular groups, such as the American Civil Liberties Union, to block the placement of religious symbols on public property. Though there are still some gray areas, he said, those cases established fairly clear precedents about what does and does not violate the First Amendment's prohibition on government establishment of religion.

"Most cities and counties know that if they're going to put a menorah and Nativity scene on public property, then they better surround it with [secular symbols such as] candy canes and some reindeer," he said.

Year-round displays?
The issue today, Sekulow said, is enforcement. Through ignorance, hostility or a desire to avoid controversy, some elected officials and school administrators treat religion "like asbestos in the ceiling tiles" and bar observances that clearly are permissible, he said.

On Friday, the ACLJ persuaded officials in Pasco County, Fla., to reverse their decision to remove Christmas trees from all public buildings. Daniel R. Johnson, an assistant county administrator, said the removal had been triggered by a request from a resident to put a Hanukah menorah next to the Christmas tree in the public library.

At first, county officials feared that "if you open the door to one, then you must open the door to all, and not just during the holiday season, but all year long," Johnson said. But on further review, he said, the county's attorney decided there would be "little legal risk" in a temporary display of both a menorah and a Christmas tree, along with a sign saying they are symbols of "our legacy of freedom."

In other cases across the country, Christian groups have argued in court this month against a New York City school policy that allows menorahs during Hanukah and the Islamic crescent during Ramadan but not Nativity scenes during Christmas. A federal judge in Florida on Wednesday ordered the town of Bay Harbor Islands to grant a resident's request to erect a creche next to a local synagogue's menorah on public property.

Religious backlash
In Maplewood, N.J., Christian groups threatened to sue over the school district's policy of allowing secular songs, such as "Jingle Bell Rock," but not hymns, such as "Silent Night," at student concerts. In Mustang, Okla., voters angry over the school superintendent's decision to remove a Nativity scene from a student play helped defeat a $10.4 million bond issue to build a new elementary school.

Barry Lynn, executive director of the advocacy group Americans United for Separation of Church and State, said the "new strategy of the Christian Right is forced inclusion — they take a secular display and demand that Christian symbols and carols be added."

Christian talk radio, Lynn said, is fueling a "huge movement saying there is a war against Christmas both by the government and by private business, which I think is nonsensical, because unless you live in a cave in America in December, you know it's Christmas."

But Anthony R. Picarello Jr., a lawyer with the Becket Fund for Religious Liberty, which works for greater freedom of religious expression, said it is not easy to say which side is truly the aggressor. "If these Christmas pageants and displays have been done for a long time and now there's a push to exclude them, then it appears to be aggression from the left. If they haven't been done and someone's suing to add them, then it appears to be aggression from the right."