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“Holiday Wars” Highlight Need for School Choice

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While the First Amendment’s Establishment Clause forbids government from promoting religion, that same amendment’s Free Exercise Clause protects its open practice. The tension between these clauses is most evident during the “holiday season.” How government resolves that tension is often confused, contradictory and discriminatory. And while it may be the opposite in the Bible Belt, here on the coasts, perhaps motivated by sensitivity to minority faiths, the bias is often against Christians.

On May 20, 1998, Catholic League president William Donahue testified before the US Civil Rights Commission that in “Manhat­tan Beach, California, a public school removed a Christmas tree from school property after a rabbi objected that the tree was a religious symbol; however, the school allowed the display of a Star of David. … in Mahopac, New York, Boy Scout students were barred from selling holiday wreaths at a fundraiser, even though a wreath is a secular symbol; Hanukkah gifts, however, were allowed to be sold at the school’s own fundraiser.”

Yet government does not consistently regard Jewish symbols as secular. Donahue adds, “I confronted an attorney for New York City Schools Chancellor Rudy Crew regarding the practice of banning crèches in the schools while allowing menorahs. At first, she cited the 1989 County of Allegheny v. ACLU decision to buttress her case, but when I pointed out that that decision undermined her case–making the argument that the high court declared a menorah to be a religious symbol, not a secular one–she quickly retreated. Such ignorance strikes me as will­ful.”

Adding to the confusion, US Supreme Court nominee Samuel Alito is unconvinced that menorahs–or crèches–must be banned from state property. On July 1, 2005, the Washington Post re­ported that, while on the 3rd Circuit Court of Appeals, Alito “wrote for the majority in 1997 in finding that Jersey City officials did not violate the Constitution with a holiday display that included a creche, a menorah and secular symbols of the Christmas season.”

But despite Alito’s opinion, in a lawsuit against New York City’s Department of Education, Andrea Skoros alleged that her sons were “coerced” into coloring menorahs at school, were taught the story of Hanukkah but not Christmas, and that their schools displayed menorahs, dreidels, Kwanzaa candelabras, wreaths, bells, Santa Claus, snowmen, and Islam’s star and crescent (for Ramadan). Skoros requested that Nativity scenes be added to include Chris­tianity. School lawyers argued that, unlike menorahs and Islam’s star and crescent, Nativity scenes did not represent a historical event. Newsday’s Wil Cruz quoted Skoros as saying that her sons were “coerced to accept Judaism and Islam at the expense of their Catholic beliefs.” On February 18, 2004, Brooklyn Federal Judge Charles Sifton upheld the holiday displays, ruling that Nativity scenes were “purely religious” whereas the others had “signifi­cant secular connotations.”

Sifton’s ruling illustrates an ominous Establishment Clause loophole. If government can declare some religious symbols and stories to be secular and historical, and others to be “purely religious,” then government can allow favored religions to circumvent the Establishment Clause–much like African slaves’ rights were circumvent­ed by declaring them to be “not persons.”

One solution may be to declare that symbols that are in any way religious are religious, whatever else they may be, and hence treated the same as all other religious symbols. But that still leaves government in charge of interpreting the rules, and if government were an honest broker, and men were angels, we would­n’t have so many contentious school board elections or lawsuits to begin with.

A better solution may be to avoid such conflicts altogether by reinforcing “separation of church and state” with “separation of education and state.” School vouchers would be a start, em­powering low-income parents to choose whether to send their children to a religious school, or multi-religious school, or secular school. Right now, parents sending children to private schools must pay twice; taxes for public school and tuition for private school. That’s hardly fair.

Those opposing school vouchers have argued that they don’t want their taxes promoting religion. Andrea Skoros may say that public schools are no guarantee that that won’t happen.

In private life one can celebrate–or not–as one wishes, and protest or boycott businesses one feels slighted by. You vote with your wallet. Let’s extend that vote to low-income parents seeking to educate their children.

About Thomas M. Sipos