[James Fulford writes: Tonight is Twelfth Night, or Epiphany, traditionally the end of the Christmas season. Peter Brimelow will be announcing the winner of the War on Christmas Competition soon, somewhat delayed by the press of other work. This also is traditional.]
For Christmas, I thought I would find out what has happened with respect to the Skoros v. City of New York case—the curiously underreported litigation in which the New York City Department of Education scandalously defended its Christophobic policy of permitting "Holiday Season" displays of menorahs and stars-and-crescents while at the same time suppressing any display of Nativity scenes. (For a 2006 VDARE.com article on Skoros, see here).
Despite acknowledging the obvious, that menorahs and stars-and-crescents are religious symbols—something the Department of Education had ludicrously denied—the Second Circuit ruled that this blatant religious bigotry passed muster under the First Amendment because, in the majority judges' view, it was not a promotion of one religious viewpoint over another but merely a promotion of "diversity", and so an acceptably secular purpose.
Note that the Second Circuit did not say that displaying a Nativity scene would not pass muster. It just left the decision on whether or not to add the Christian symbol to the Jewish and Muslim ones on display to the New York City officials.
Surprise, surprise: those forthright champions of inclusion and diversity, Mayor Michael Bloomberg and Schools Chancellor Joel Klein, felt no compunction whatever about continuing to exclude Christianity from the city's "Holiday" celebrations.
Sadly, the Skoros case died when the Supreme Court declined to hear it. The issue has not been brought forward in another forum since.
Nevertheless, the issue raised remains live and increasingly important today, with Islam joining institutionalized Judaism as a cultural challenge to America's traditional Christian foundations. (The fact that very few Americans actually want a Muslim presence of any kind in America seems, as usual, to be entirely beside the point.)
Does America's Christian majority have any right to expect their nation's public places and institutions to reflect their beliefs in any way? Are majority Americans somehow constitutionally compelled to stand idly by as all public expression of their heritage and beliefs is purged to assuage the perpetually irritated sensibilities of professionally aggrieved minorities? Do those minorities really get to shoulder aside the majority's symbols and impose their own?
Unrelenting protest of any public display of Christianity has long been a stock-in-trade of some American Jewish groups and related self-appointed watchdogs such as the ACLU. Now, of course, Muslim pressure groups that have adopted the modus operandi of the Jewish groups are joining the game. (Ironic, that, considering what the Koran says, in the most offensive terms, about Jews.)
The Skoros case offered the Supreme Court an excellent opportunity to clarify its muddled record on church-state separation. This state of confusion has only been growing since the constitutionally creative Justice Brennan invented the notoriously subjective "Lemon Test" in 1971's Lemon v. Kurtzman. (Roughly, if an apparently religious display advances a secular purpose and doesn't endorse one religious viewpoint over another, it might pass muster.)
Yet SCOTUS punted. Why?
The question is impossible to answer for sure, as the Court does not give reasons for declining to take a case. It might be that a plurality of justices thought the case trivial, or that it raised no constitutional issued needing clarification.
Or it might be that justices did think there were issues they might address in Skoros, but they preferred to wait for a case that presents those issues more clearly, or in a way that points toward the result most justices prefer.
(A fairly recent example is affirmative action—aka anti-white discrimination—in higher education. The Hopwood decision, from the Fifth Circuit Court of Appeals, ruled clearly against the University of Texas law school's flagrant use of racial quotas to admit black and Mexican applicants while rejecting far better qualified white applicants. The Supreme Court let Hopwood stand without comment. But the Court's affirmative action supporters got their chance with the Michigan cases a few years later, and were able to use those cases, about racial preferences in University of Michigan admissions, to invent a "constitutional" justification for continuing to reject white applicants while admitting less qualified blacks and Hispanics.)
With issues as charged as those in Skoros, and with the reality—even if one must never mention it—of Jewish power in Washington and in the American legal profession overall, the case may simply have been a third rail the justices weren't about to touch. We'll probably never know, unless one of the justices or law clerks involved writes a tell-all memoir.
If the Supreme Court had taken the Skoros case, the justices could have made a larger constitutional point. In a sane society, judges would acknowledge that the First Amendment has nothing to do with what happens in a New York City schoolhouse, for two reasons.
That hackneyed phrase is lifted out of context from a private letter Thomas Jefferson wrote to a Baptist congregation in Danbury, Connecticut in 1802.
(And it is ironic indeed that those who favor having federal judges decide all constitutional questions, especially those touching religion, love to cite Jefferson. Perhaps they are unaware of what he wrote to William Jarvis in 1820: "You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.")
All the establishment clause of the First Amendment actually says is that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. That means no more, in its context, than that Congress shall not establish a Church of the United States analogous to the established Church of England, and that Congress shall not prohibit the Roman Catholic Mass in the United States, as the British government had done in the United Kingdom.
Until Supreme Court justices invented the "Incorporation Doctrine" as a way to subject effectively all actions of state and local governments to the oversight of federal courts, people understood that the First Amendment means what it says. It restricts the federal government, not municipal school boards.
The Skoros case resurfaced in New York City in 2009. Councilor Tony Avella had presented a resolution [PDF] following the Supreme Court's passing up Skoros to permit a Nativity scene to be displayed alongside the menorahs and stars-and-crescents in city schools. [NYC City Council Takes Up Issue of Discrimination Against Christians in City's Public Schools, Thomas More Law Center, January 16, 2009] The City Council debated the resolution in January 2009, but, no doubt thanks to artful stonewalling by proponents of diversity (as long as it ain't Christian), it never came to a vote. It expired sine die with the year 2009. (The Resolution was put forward by Council Members Avella, Foster, Gennaro, Gentile, James, Nelson, Palma Sanders,Jr., Vallone Jr., Arroyo, Sears, Stewart, Gioia and Oddo.)
More recently, the City Council has been debating whether to give the city's public school pupils two more days off to acknowledge two Muslim holidays. After considering it, Mayor Bloomberg decided to oppose the change.
Bloomberg reached the right conclusion, but not from any great concern about pandering to the same "religion of peace" that brought NYC the exciting events of 9/11/2001. No, Bloomberg's concern—not unreasonable—is that NYC schoolchildren already have too many days off in their abbreviated school year. As far as I can tell, the issue remains open.
My guess: in the never-ending push for diversity (which, in plain English, means that the traditions and customs of Western societies must always and everywhere be quashed in favor of the alien customs immigrants legal and otherwise bring with them), we will see no Nativity scenes in New York City schools, and NYC school kids will eventually get to play hooky for Eid-al-Fitr….unless something is done.
On another front in the Christmas wars, James Fulford reported recently that Federal Reserve bank examiners had forced the Payne County Bank of Perkins, Oklahoma to purge itself of any Christian expressions. Good news there: the leading (and exceedingly rare) voice of sanity at the Federal Reserve, Kansas City Fed President Thomas Hoenig has reversed his examiners' diktat.
So, a Merry Christmas to all in Perkins, and all across the land! The Battle of Perkins is noteworthy, not merely because it ended in a victory for the Americans, but because the story of the Fed bank examiners' anti-Christian high-handedness spread across the internet and ignited a lot of righteous anger.
Americans owe Thomas Hoenig thanks for more than just his willingness to oppose Fed Chairman Ben Bernanke's monetary follies. And so, Merry Christmas to you too, Thomas Hoenig!
There is a way to free Americans from the judicial "oligarchy" that Jefferson feared—which has emitted a seemingly endless string of federal court rulings driving Christian symbols and observances from public life, and much other evil. It's one that Thomas Jefferson, healthily skeptical of the wisdom of judges as he was, would thoroughly approve.
The U.S. Constitution, in Article III, only specifies a very limited jurisdiction for federal courts. Anything else can be removed from the jurisdiction of the federal courts by an Act of Congress. That would certainly include the Establishment Clause of the First Amendment. And if that were done, cities and towns could go back to having crèches or not, as their citizens pleased—which of course was the case for most of American history, with no threat whatever to anyone's religious liberty.