Church-State Issues Linger Out of Season

The ACLU-NJ's perennial conflicts over government sponsored religious displays continued unabated this holiday season. A new trend has emerged, however, in the wake of the Supreme Court's 1995 decision in Capital Square Advisory Committee v. Pinette, which upheld the ACLU's position that private religious speech in a public forum was protected by the free speech clause of the First Amendment and should not be viewed as unconstitutional governmental endorsement of religion. Thus, faced with complaints by the ACLU-NJ concerning religious displays on public property, a number of government entities have responded by stating that they will create public fora where the displays are located, and turn the displays over to private groups.

Thus, for example, after we filed suit against Monmouth County over their display of a menorah and a creche on the plaza outside of the County Hall of Records, the county decided to turn the plaza into a public forum where private individuals may legally sponsor religious (and any other) displays. Anderson Harkov, our cooperating attorney, is awaiting the promulgation of content neutral rules to ensure that the County complies with the mandates of Pinette.

The State of New Jersey took the same approach after we complained about the menorah erected on the statehouse lawn. We are still awaiting the drafting of appropriate regulations, and will seek to ensure that they are in place before the next holiday season. The statehouse menorah was also the focus of another complaint this year, after the Governor sent out official invitations to a religious lighting ceremony. After we wrote to express our concerns, the Governor was quoted in the press as saying the invitations were a mistake and would not be repeated.

Our litigation against Jersey City, after an initial victory, suffered a disappointing setback. Volunteer attorney Ron Chen, a professor at Rutgers Law School and the Vice President of our Board, sued Jersey City over its display of a menorah and creche on the City Hall lawn. Judge Debevoise, of the U.S. District Court ruled that the display was an unconstitutional endorsement of religion, and barred the City from erecting it or anything similar. In response, Mayor Schundler added a plastic snow man, plastic Santa, and a sleigh to the display put up in December. To our surprise, the Judge rejected our motion to hold the City in contempt and to enjoin the new “secularized” display. We have appealed the Judge's second ruling to the Third Circuit.

Finally, the holiday season also brought a unique free speech and establishment clause complaint. When the Volunteers of America, a charity that aids the needy, sought to bring its volunteer Santa Clauses to solicit donations on the streets of Hoboken, they were told that they needed a permit and that any donations raised must go to a local Catholic church. When ACLU-NJ Legal Director Wenk objected, the City agreed to permit the solicitation and dropped the required donation to the church.

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