Are Nativity Scences illegal, Community standards, Public Nativity scenes, The constitution and nudity, the constitution and religious liberty
Every year it is the same, holiday trees verses Christmas trees and Nativity scene lawsuits by militant atheist. It is something that our founding fathers would have found amusing and likely even repulsive. Looking back there was never any hint of controversy over the issue of public Christmas displays for nearly 200 years. This is a relatively new phenomenon with quite dubious foundations.
This whole thing was initiated by a wholly unsubstantiated reinterpretation of one line in the U.S. constitution. The line from the first amendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. A line that was not considered controversial or its meaning in dispute until a set of progressive judges decided to make it so. For generations everyone knew the first amendment was simply trying to prevent a practice that was common in Europe from finding its way to America. Over centuries the old countries of Europe were in the nasty habit of establishing national churches and/or outlawing the faiths of minorities. This clause simply says this practice of governmental regulating of personal religious beliefs is not allowed here. This is a far cry from the misguided antireligious fervor one sees today.
The fact is the founding fathers never dreamed the federal government would have the power it seems to have today. They were vehemently opposed to some central power telling people and communities what they could celebrate and how. It also certain they never envisioned the first amendment’s declaration on government and religion to be interpreted so broadly. They undoubtedly would have recoiled at the idea that politicians were to somehow become agnostics as soon as they entered into a government building or that local municipalities would be prevented from reflecting local community standards. In fact it was just this type of overreaching centralized power they were trying to avoid.
From his Christmas prayer during the darkest hours of Valley Forge to his Grand Christmas galas held while he was president, Washington certainly could never have fathomed the controversies over this and other religious holidays. James Madison, father of the constitution, celebrated Easter in front of the capital where his wife started the tradition of the Easter egg roll. If such a naked endorsement of a purely religious holiday on public grounds was unconstitutional I am sure he might have noticed. The truth is these men actually understood the constitution and didn’t just pretend to, like many constitutional lawyers today.
To understand the constitution you have to understand the philosophies of the men behind it. Most of the founders believed that responsible adults had natural rights; these were rights no person or government could legitimately put adhoc limits on. Rights like freedom to speak your mind, believe what you want to and the freedom to work to support oneself. These are what are summarized in the Declaration of Independence as life, liberty and pursuit of happiness. The only legitimate reasons to restrict these rights were to prevent one person’s rights from interfering with the rights of another and to protect society from individuals, or individuals themselves, who are not considered responsible adults (children, severely mentally handicapped, criminals and the insane). Everything outside of the realm of natural rights was considered the realm of common law and community standards.
Today if a community wants to ban liquor sales it can, if it wants to regulate different types of businesses on the basis of “community standards” of decency they can (at least at the moment). These types of decisions are usually based in part or in whole on the religious preferences of the majority. In different parts of the country schools might close on Good Friday or the first day of hunting season. These are all actions that have a much greater impact on the minority then say a nativity scene. While the minority might very well object strongly to all of these examples they have no legal basis to complain. The majority in a community has the right to set the standards of that community as long as they respect the fundamental rights of individuals. There is no right not to be offended or guaranteed access to your favorite vice. What one does have is the right to petition, debate, seek redress or even to move to a community more to their liking.
Today the ideas of the founders seem to be followed when it is convenient to the left and ignored or fought when it is not. They will fight tooth and nail a nativity scene or even a Christmas message hung off a private building over a public walkway. On the other hand nude men walking in public in front of children in San Francisco is okay since it is just a reflection of a community with differing standards. The Nativity scene and naked celebrations in San Francisco are both examples of personal belief systems supported by a municipality but since one is secular and the other religious they are treated differently. It seems secular belief systems have more rights than religious ones by those on the left. The truth is both examples are a reflection of the community standards (or lack of standards) and as such allowed by the constitution. The constitution is designed to protect the rights of individuals while at the same time provide a great amount latitude to States and municipalities to account for community standards. The left seems to understand the principle when it comes to naked gays frolicking in the street but is aghast when it is applied to religious statues on a lawn.
The truth is the founding fathers would not have found anything wrong with a Jewish community having a Menorah in front of city hall during Hanukah or even a Muslim community having a crescent there during Ramadan. If these items were reflective of the community and accepted by a majority it would not be seen as against their principals and those of the constitution. The municipal governments were free to express the values of the community as long as they did not restrict the rights of religious minorities. This is a far cry from the modern and very recent ideas concerning government and religion.
The founders did not recognize the right of individuals not to be offended or the right of minorities to dictate the conduct of the majority. The religious preferences of the majority have always been reflected in officials they elect and how those officials conduct business. This is nothing new. Congressional meetings have been opened with prayer ever since there was a congress, towns have decorated themselves for Christmas for most of this country’s history and when the Supreme Court was built the Ten Commandments were enshrined in its stone.
The precedent of nearly two hundred years of common law and constitutional interpretation is clear: local governments have the right to be reflective of the communities they represent as long as the minority views are not prohibited. When it comes to putting lighted stars on main street or nativity scenes on the front lawn of city hall the constitution is mute and purposely so. What the law does not forbid it allows.
So too all I say Merry Christmas
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