From vouchers to tax credit scholarships programs, "school choice" schemes are a means to divert public money to private, mostly religious schools.
The Alabama Senate passed Senate Bill 277, the so-called "Religious Display Freedom Act," on Tuesday, April 7. The bill purports to allow municipalities to place nativity scenes and other religious displays on government property. Protections against government-endorsed religious messages are codified in the U.S. Constitution, which the Alabama legislature cannot unilaterally ignore. This ill-conceived bill is now before the Alabama House Committee on Judiciary for further review. Shockingly, the bill passed the Senate unanimously (with only one member absent).
Seemingly by design, this bill misleads cities and other local bodies by portraying nativity scenes or other government-sponsored holiday displays as constitutional. The law, however, is far from straightforward. Most of the bill is devoted to laying out a black-and-white interpretation of the Supreme Court's Lynch v. Donnelly decision of 1984. But SB 277 misrepresents and overstates the Lynch decision at every turn. This is why the U.S. Constitution leaves legal interpretation to the judiciary, not the legislature.
The city-owned holiday display found permissible in Lynch was located in a park owned by a nonprofit organization and included, "among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads 'SEASONS GREETINGS' . . . ." The nativity scene was not featured prominently; it was one small element of a much larger display. But this nuance is lost in SB 277, which decrees that a nativity scene is permissible if the display includes "at least one secular scene or symbol."
That misleading interpretation of Lynch flies in the face of other Supreme Court precedent. Five years after Lynch, the high court ruled in County of Allegheny v. ACLU that a crèche display on the steps of the county courthouse was unconstitutional. The court held that the crèche, located at the seat of county government, endorsed an indisputably Christian message, while a Christmas tree and menorah could remain, as they signaled diversity.
SB 277's biased, incomplete review of case law sets up municipalities to recreate the mistakes of the past, with legal costs inevitably raiding taxpayers' pockets.
So what pressing need does the bill's sponsor, Senator Phil Williams, cite as the reason for drafting SB 277? Williams claims, "Like many Alabamians, I was outraged when the Freedom From Religion Foundation in Wisconsin threatened the cities of Rainbow City, Piedmont, and Glencoe with lawsuits, all for having a manger scene in front of their city halls during Christmas."
What Williams fails to mention is that the Rainbow City and Glencoe nativity scenes stood alone without any other holiday decorations, in clear violation of Allegheny and not in conformance with Lynch. (FFRF's letter to Peidmont was about a Christmas parade, which isn't addressed by SB 277). The Glencoe nativity even included banners reading "KEEP CHRIST IN CHRISTMAS" and "Wise men still seek Him," clear endorsements of Christianity above all minority religions and religion over nonreligion. SB 277 can't make these displays constitutional. All it serves to do is embolden municipalities to further violate the Constitution.
While none of FFRF's letters threatened a lawsuit as Williams claimed, SB 277 increases the likelihood that a lawsuit will be necessary, by needlessly encouraging municipalities to test the limits of the law, rather than having them conform to established Supreme Court guidelines.
Alabamians interested in true religious liberty should contact their state representatives and urge them to kill this bill.