The US Supreme Court decided on Tuesday not to review a case challenging the constitutionality of a New York City public school policy that expressly permits the display of the Jewish menorah and the Islamic star and crescent during their respective religious holidays, but completely bans the display of Nativity scenes during Christmas.
The constitutional challenge was brought by the Thomas More Law Center, a national, public interest law firm based in Ann Arbor, Michigan, on behalf of Andrea Skoros and her two minor children, devout Roman Catholics, who attend the New York City's schools. The lawsuit was filed only after William Donohue, president of the Catholic League, made several unsuccessful attempts to convince school officials to allow Nativity displays alongside the other religious symbols.
The Supreme Court considered the Law Center's petition for review at seven different conferences. At the end of the day, however, by deciding not to review the case the Court passed on the opportunity to clarify its much maligned Establishment Clause jurisprudence. More fundamentally, the Court allowed to stand an anti-Christian policy that adversely affects over one million students enrolled in the nation's largest public school system, which has 1,200 public elementary and secondary schools.
In the petition, the Law Center asked the Supreme Court to review a February 2006 decision of the United States Court of Appeals for the Second Circuit, in which a sharply divided panel upheld the constitutionally of the City's Nativity ban. The Circuit Court held that this policy of permitting Jewish and Islamic religious symbols but banning Christian religious symbols was permissible in part because it achieved a valid "pedagogical endeavor" by "us[ing] children's natural excitement about various year-end holidays to teach the lesson of pluralism by showing children the rich cultural diversity of the city in which they live and by encouraging them to show tolerance and respect for traditions other than their own."
Richard Thompson, President and Chief Counsel for the Law Center, commented, "This case presents yet another example of how federal courts are using Justice O'Connor's contrived test to cleanse America of Christianity. This unprincipled test allows judges to impose their own ideological views under the pretext of constitutional interpretation. Unfortunately, the Supreme Court refused to take up the case and remedy its flawed jurisprudence."
In a religious display cased decided by the Court in 2005, Justice Thomas echoed the sentiments of Thompson, stating, "The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. [A] more fundamental rethinking of our Establishment Clause jurisprudence remains in order."
Robert Muise, trial counsel for the Law Center who handled this case, was disappointed with the Court's decision, stating, "Our Constitution plainly forbids hostility toward Christians. Our Nation has a strong Christian heritage that is reflected in our traditions. One such tradition is displaying a crèche during the Christmas season. New York City's Nativity ban exhibits a hostility that is contrary to our history and our Constitution. The Supreme Court should have reviewed this case."