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Bret Schundler's Victory Over the ACLU

Creche Back In Jersey City

Originally appeared in the Catholic Advocate

Next Christmas, Jersey City residents an expect the return of the plastic figure of Frosty the Snowman, along with statues of Mary, Joseph and the Christ Child, on the front lawn of City Hall, following a recent appeals-court decision that upheld the constitutionality of the display.

The ruling will allow Jersey City to dust off its long locked-up holiday displays -- absent since a successful court challenge before December by the American Civil Liberties Union (ACLU). The items also include a menorah, Kwanzaa wreath and other holiday icons.

A three-judge panel of the Third Circuit Court ruled on February 16 that Jersey City's display was constitutional, as long as the display erected on government property was balanced with both religious and secular symbols of the season,

The decision reversed a January 1997 ruling by a different Court of Appeals three-judge panel, which deemed the display unconstitutional because it violated separation of church and state.

"I'm elated," said Jersey City Mayor Bret Schundler about the court's recent decision. "It shows that the Constitution doesn't allow for discrimination against religion.

"It also shows that the ACLU doesn't know what the Constitution says," the mayor added. "You can't censor out religion. It's always been part of people's cultural heritage."

Before it unpacks those displays, however, Jersey City must clear another legal hurdle posed by the ACLU since the February ruling. In the wake of the two different appeals court rulings, the ACLU has petitioned the court's full 12-judge panel to review the case.

"I'm optimistic we will win," Schundler said of the latest challenge. "We've been right from beginning."

Schundler said the embattled Christmas display is one of several cultural displays to be erected in front of City Hall throughout the year. The city also holds a myriad of events to celebrate the city's cultural diversity.

"The court's opinion goes a long way toward restoring common-sense to the law of religious liberty," noted Kevin Hasson, who is president of the Becket Fund for Religious Liberty, which led Jersey City's legal battle, He also argued the case before the Court of Appeals during the summer of 1998.

David Rocah, an ACLU staff attorney and co-counsel on the case, said, "Naturally we're disappointed; the court's whole decision is wrong."

The ACLU attorney contended that the "constitutional" modifications Jersey City made in 1995 -- by adding secular symbols to the display -- were an attempt to "secularize" a religious display.

He criticized the court ruling claiming it treated the "Constitution as a triviality."

The court's 2-1 decision, was based on two previous court rulings that upheld the constitutionality of displays that included both secular and religious symbols, said Eric Treene, another Becket Fund attorney involved in the case.

"It was a thorough and scholarly opinion that we think will pass constitutional muster, Treene said.

The presence of both types of symbols doesn't constitute endorsement of religion in general or any specific religion, the court said.

"Jersey City's acknowledgement that you can't weed religion out of the culture without tearing up the culture has been vindicated by the decision," said Treene.

The one dissenting opinion came from Circuit Judge Richard Nygaard, who said Jersey City's display "had the effect of communicating an endorsement of particular religions" -- despite the inclusion of the secular objects.

The legal battle began in 1994 when the ACLU filed suit against Jersey City, arguing that displaying religious symbols on public buildings violated the Constitution's separation of church and state.

After a federal judge ruled in 1995 that the city's display was unconstitutional, Jersey City added the figures of Frosty and Santa Claus to balance the religious with the secular.

The ACLU challenged the new approach before a Third Circuit Court of Appeals, whose three-judge panel in 1997 upheld the lower court ruling.


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