ASP-OH Responding to the Removal of a Nativity Scene on Public Property in Dover, Ohio

It appears we continue to face attempts to strip the public square of religious expression.

A few days after Thanksgiving, the small City of Dover, Ohio moved two items of religious origin from city property to nearby church property: a monument to the Ten Commandments, and a nativity scene centered on statues of the figures involved in the Nativity. Both items are of the sort seen in many public American places, especially during the Christmas season. According to a report by Fox-8 in Cleveland, officials took that action in response to the threat of a lawsuit from the Wisconsin-based Freedom From Religion Foundation, which claimed in a January letter to Mayor Richard Homrighausen that they were acting in response to a complaint from a local source whom they did not name.

On November 30, shortly after the offending items were moved, a foundation attorney said over the phone to the Fox-8 reporter: “It’s important to uphold the First Amendment and that’s an effort every American, regardless of religion or party affiliation, should join…We are defending the First Amendment of the U.S. Constitution; it doesn’t get any better than that.”

Homrighausen was nonplussed. “We have freedom of religion and they’re saying that we’re endorsing one religion…Yeah, they have a point, but it’s been that way for eons so just leave us alone,” said the mayor.  The city’s attorney noted that fighting the lawsuit could well cost “hundreds of thousands of dollars.” So officials made the decision to cave.

This is part of what is becoming a bullying trend. Six years ago, another small Ohio city, Steubenville, faced a similar problem from the same source. The FFRF threatened to sue the city for a First-Amendment violation unless a representation of the “Victory Cross” atop Franciscan University’s chapel was removed from the City’s official seal. Citing the potential cost of a lawsuit, city officials acquiesced.

The FFRF does not argue that anybody’s “free exercise of religion,” or lack of religion, is being infringed. Rather, their argument is that allowing any sort of religious expression on public property constitutes “endorsement” of the pertinent religion, thus violating the establishment clause of the First Amendment, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

To explain why the American Solidarity of Ohio rejects that argument, a bit of background is in order.

An “establishment” of religion consists in the official adoption by government of a specific religion, which typically involves support of that religion’s clergy and infrastructure through taxation. A contemporary example is the British government’s establishment of the Church of England, which has obtained since the 16th century. At the time of the Bill of Rights’ adoption by the new United States, several states still had established religions like that, which were all versions of Christianity. Over the next several decades, however, all of those states “disestablished” their religions by majority vote of their respective legislatures.

With that understood, the establishment clause of the First Amendment meant two things when adopted: There was to be no national establishment of religion, and the national government was not to regulate or overturn state establishments of religion. But no state has had such an establishment since before the Civil War. No unbeliever is even subject to legal sanction for being an unbeliever—even by jurisdictions most of whose residents are highly religious, such as Utah with respect to Mormonism. There simply is no establishment of religion in the sense meant in the First Amendment, and there has not been for a long time.

Back to Ohio today. All that displays such as Dover’s or Steubenville’s do is reflect the beliefs and sensibilities of the majority of residents, who want certain things they cherish to be publicly acknowledged by their local governments.  That acknowledgement does not constitute an establishment of religion in the constitutionally relevant sense. To deny residents that desire on the ground that unbelievers might feel oppressed or offended, and thus have their own rights violated, is absurd. Nobody is penalized nowadays for disliking religion or ignoring its symbols.

There are also broader reasons for opposing attempts to strip religious expression from the public square. As part of its justification for separation from Great Britain, the American Declaration of Independence cites “the laws of Nature and of Nature’s God,” implying that the two are relevantly the same. It also affirmed that “all men…are endowed by their Creator with certain unalienable rights…” The American founding thus presupposes ethical monotheism: the belief that there is one God who created the world and is the source of universally binding moral norms. Ethical monotheism is sourced in Judaism and Christianity, but it is non-sectarian: one needn’t be Jewish or Christian to accept it, and indeed it is consistent even with deism. It is also the traditional support for the idea that basic human rights, by virtue of having a divine source, are inherent, not merely social or political constructions that could in principle be deconstructed or eliminated.

Accordingly, the idea that the American foundation is purely secular, or that it ought to be in order to secure a basic human right, is thus philosophically as well as historically indefensible. Ethical monotheism is both the historical and conceptual basis for the idea of “human rights” that no government bestows and no government can erase, even when governments violate them. Such rights entail certain freedoms, such as freedom of conscience. Thus no person may be forced to profess religious doctrines they do not believe; that would be a violation of basic human dignity and rights as established by God. Under that understanding of ethical monotheism, atheists are thus just as legally protected as believers. If we reject ethical monotheism as the basis for our polity’s moral legitimacy, then the only acknowledged basis for human rights would be purely human. In that case, governments can not only invent but revoke any right at will, as long as it has enough popular support for, or acquiescence in, doing so. Nobody would any longer be seen to have certain inherent rights to which they can appeal, and atheists would be in as much danger as believers. The bloody history of atheist regimes, especially in the 20th century, should make that clear.

For such reasons, we should not view a purely secular public square, stripped of any religious expression, as protection for unbelievers.  In an American context, public religious expressions simply do not threaten belief in those moral and political principles which secure the freedom not to believe as well as the freedom to believe. One might even argue that they facilitate belief in such principles. So the assumptions and tactics of organizations like the FFRF are ultimately counterproductive, and it is in every citizen’s interest to resist them. There are many organizations defending the freedom of religion that are actively working to counter the destructive actions of the FFRF, such as the First Liberty Institute and Becket Fund for Religious Liberty, whose work we laud.

Author: Michael Liccione, PhD
Editor: Christopher Zehnder, MA

One thought on “ASP-OH Responding to the Removal of a Nativity Scene on Public Property in Dover, Ohio

  1. William Campbell December 12, 2018 at 7:47 pm - Reply

    I am troubled that a person can threaten a lawsuit without disclosing who they are. I understand that these legal entities are acting to protect the individual from retribution in their communities, but we are entitled to face our accuser in the court of law. This, “There is a member of your community that wishes you to remove the religious iconography from your court-house lawn or we will sue on their behalf,” nonsense is ridiculous. How are we to even know if that person actually lives in the county or not. The law firm could just be going county to county to force them to remove symbols of that community’s faith. Maybe this could be circumvented by a ballet issue.

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