The Supremes and Christmas

Sorry to do this to all of you, but I am in law school, you know.

Is O'Connor's reasonableness standard the solution to the establishment clause problems surrounding public displays of nativity scenes in the town square? Here's some background for you. Depending on which Supreme Court case you read, you either can have a public display of a nativity scene or a menorah or you can't. There are cases both ways. The distinction seems to be whether the religious symbols are by themselves or surrounded by secular themes and whether they're funded publicly or privately. But there's another distinction that is also prevalent, and that's O'Connor's application of the "reasonable man" standard. Would a "reasonable man" looking at the display, interpret it as a government establishment of religion. If so, it's illegal. If not, then let it alone.

The reasonable man test seems like a much better measurement of whether a display is an establishment of religion than the other two used above because it makes things much simpler and would successfully limit the number of battles that would have to be fought in courts over this issue. It would also provide much stronger guidance for religious groups and small towns than the mish mash of rulings that exist around the country today. This is because in today's day and age it would take a strongly worded message along with the display for a "reasonable" person to think that the display itself is an establishment of religion, and only if it's publicly funded. This isn't to say that unreasonable people would interpret a privately funded menorah amongst a plethora of secular items an establishment of religion, but that's not the test that's used today or should be used at all.

You see, most reasonable people are aware that Christmas is a religious, not a secular, holiday. As such, most reasonable people accept nativity scenes for Christmas, Menorah's for Hanukkah, and other religious symbols for those specific holidays. Thus as long as the city or town doesn't put up signs saying their town (hearts) the birth of Christ as their only symbol of the holidays, a reasonable person wouldn't have a problem with displays of religious symbols during this time of year.