In what would appear to a majority of American’s as a clear cut violation of the establishment clause, a Federal Judge upheld a New York schools policy of allowing the display of Jewish menorah and the Muslim star and crescent in multireligious holiday displays; while disallowing a nativity scene in the same display. While it is not un-customary for Federal judges to make similar rulings, it is un-customary for the Supreme Court to reject such cases as having no merit.

At issue in Skoros v. City of New York was whether the city’s public school system is impermissibly promoting Judaism and Islam while conveying a message of disapproval of Christianity. School rules allow the Jewish menorah and the Muslim star and crescent in multireligious holiday displays but not nativity scenes depicting the birth of Jesus.

The case had been relisted on the high court’s private conference calendar seven times in recent months, raising expectations that the justices were taking a close look at the issue.

“We are obviously disappointed,” says Brian Rooney of the Thomas More Law Center in Ann Arbor, Mich., which was urging the court to take up the case. “What this says is the [war on Christmas] is ongoing. It is going to continue festering state by state, county by county, and city by city.”

While the policy, written with the help of city lawyers, bars nativity scenes, it allows depictions of Christmas trees to represent the Christian celebration of Christmas.

“We are not celebrating the birth of an evergreen tree,” Mr. Rooney says. “We are celebrating a historic religious figure’s birth that is recognized by the nation and every state in the Union.”

In asking the Supreme Court to take up the issue, Skoros’s lawyer, Robert Muise of the Thomas More Law Center, said the school policy disfavors Christianity. “Why is the menorah – a symbol of a miracle that is central to the Jewish faith – any more or less religious than a simple scene of the nativity, which is a historic event?” he asks in his brief.

Mr. Muise urged the court to use the case to add clarity and certainty to its Establishment Clause jurisprudence. He said the justices should jettison their so-called endorsement test in favor of a more workable constitutional standard.

New York City’s school policy says in part: “Holiday displays shall not appear to promote or celebrate any single religion or holiday.” It says such symbols must be displayed together to reflect the diversity of beliefs and customs among city residents. Source

Two things are apparent in this case (at least to me);

  1. New York City’s school policy was drafted in order to avoid violating the Lemon Test established by the Supreme Court.
  2. By disallowing a nativity scene while allowing religious symbols from both the Jewish faith and the Muslim faith, the school in question violated that policy.

The schools policy, much like the ‘Lemon Test’, allow for holiday displays as long as display from other religions are also allowed. This is the idea behind “not establishing religion. By allowing a menorah and a star and crescent to be displayed without a nativity scene, the school is clearly favoring one religion over another.

Those who would argue on behalf of the schools decision will point to the fact that the school does allow a Christmas tree to be displayed along side other religious symbols. But as Mr. Rooney says “We are not celebrating the birth of an evergreen tree, we are celebrating a historic religious figure’s birth that is recognized by the nation and every state in the Union.”

The Christmas tree did not come into existence until the 17th century and has only slightly more religious symbolism than Frosty the Snowman or Rudolph the Red Nosed Reindeer (even less so when referred to as a “holiday’ tree).

Christmas Day is a National Holiday recognizing the birth of Christ. To proclaim the recognition of this birth through the display of a nativity scene as unconstitutional not only insults those who celebrate the holiday, it goes against the Constitution itself; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

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