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Appeals court bars Nativity at schools
But approves Jewish, Islamic symbols in NYC public system
Posted: February 4, 2006
1:00 a.m. Eastern



A divided federal appeals-court panel ruled New York City schools can ban the display of the Christian Nativity during Christmas while permitting a Jewish menorah and the Islamic star and crescent during Hanukkah and Ramadan.

The Thomas More Law Center, which brought the case on behalf of Andrea Skoros and her two elementary school children, called the 2-1 decision Thursday by the 2nd Circuit Court of Appeals in Manhattan "another outrageous example of federal courts discriminating against Christians."

"Many federal courts are using the contrived endorsement test to cleanse America of Christianity," said Richard Thompson, the center's president and chief counsel. "This unprincipled test allows judges to impose their ideological views under the pretext of constitutional interpretation."

New York City has the nation's largest public school system, with more than 1 million students enrolled in its 1,200 schools and programs.

"This should be a wake-up call for Christians across this nation," Thompson said of the decision.

Thompson noted Judge Chester J. Straub issued a lengthy, 46-page dissent. Earlier this week, Straub was the lone dissenter against his court's decision to rule unconstitutional the federal law banning partial-birth abortion.

Straub said in his opinion Thursday, "It is my view that the policy of the New York City Department of Education to arrange for the children to celebrate the holiday season in schools through the use of displays and activities that include religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, but starkly exclude any religious symbols of the Christian holiday of Christmas, fails under the [Constitution], both on its face and as applied."

Refering to the First Amendment, Straub concluded, "I find it clear that the current policy and displays violate the Establishment Clause insofar as a reasonable student observer would perceive a message of endorsement of Judaism and Islam and a reasonable parent observer would perceive a message that Judaism and Islam are favored and that Christianity is disfavored."

The New York City schools' policy states that the display of "secular holiday symbol decorations is permitted" and lists as examples the menorah and the star and crescent.

But the policy specifically excludes the display of the Christian Nativity scene.

The city argues the menorah and star and crescent are permissible symbols because they are "secular," whereas the Nativity scene must be excluded because it is "purely religious."

The majority, in fact, said the city's argument was fallacious, stating that the policy "mischaracterizes" these symbols, but still upheld the ban on the Christian Nativity.

The court wrote, "No reasonable objective observer would perceive from the totality of the circumstances in this case that the purpose of the challenged display policy was, in fact, to communicate to city schoolchildren any official endorsement of Judaism and Islam or any dismissal of Christianity."

The majority opinion concluded the "actual and perceived purpose of the holiday display policy was to use holiday celebrations to encourage respect for the city's diverse cultural traditions."

Straub argued the Nativity scene "depicts a historical event and thus, has some non-religious aspects to it."

He contended the city's "action in defining a menorah and star and crescent as secular, and a crèche as 'purely religious,' is impermissible insofar as it takes positions on divisive religious issues."

Robert Muise, Thomas More's attorney handling the case, called it a "shocking decision" that should outrage Christians.

"We strongly believe that the majority decision is fundamentally flawed, as pointed out by the dissent, and we intend to take this fight to the next level," he said. "This battle is far from over."

Muise, said he will ask the full 2nd Circuit to hear the case, and, failing that, will appeal it to the U.S. Supreme Court.

Muise said, according to the Associated Press, the new Supreme Court justices were "just waiting for cases like this to come before them to hopefully straighten out the mess the courts have created."