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Around Christmastime, the news is full of the usual desultory stories about lawsuits demanding that one town or another take down its Nativity scene. The law in this area has long been hopelessly confused, and plenty of municipalities decide in the face of threatened litigation that discretion is the better part of valor. And the story always ends the same way: Court 1, Town 0.
But this year in the rural Minnesota town of Wadena -- population 4,133 -- something is different. In November, following a complaint from the Freedom From Religion Foundation, the town council voted to take down a creche that has been displayed on city land during the Christmas season "as long as anyone in Wadena can remember." Mayor George Deiss, defended the display as "a tradition to the city" rather than a religious message. The council, however, was unanimous.
At that point, usually, the controversy fades away. In Wadena, however, something unusual happened. A Facebook page was established to encourage residents to set up their own Nativity scenes on their own property. And they did. On lawns. In shop windows. Outside privately owned buildings. Writes the Minneapolis Star Tribune:
"Downtown Wadena is a hub of Nativity activity: There are four sets in the windows of the Ben Franklin Crafts store; an inflatable set, complete with inflatable sheep, in the cyber cafe across the street; one painted in the window of the Pizza Ranch; three at the Boondocks Cafe, and two at the local bookstore, An Open Book."
In fact, by some estimates the little town of Wadena now has more Nativity scenes than residents. (The mayor alone has eight or nine displays on his property.)
Let's grant the wisdom of the Supreme Court's near-ban on the display of creches when organized by public officials on public property. And let's not get into the unruly conversation about when and how public land can become an open forum for religious displays. Let's stick to what's going on in Wadena.
You might think that because the Wadena displays are on private property, they are constitutionally protected expression. As it turns out, not everyone agrees. An Idaho homeowners association got a lot of bad publicity this year for trying to enforce its rules in a way that would have prevented a resident from exhibiting what we might call an enormous display of Christmas decorations. Evidently, it's not unusual for what are known as common-interest communities -- subdivisions, condominiums, timeshares and the like -- to enforce restrictive covenants banning displays of various types on members' property or units. Given that well over half of newly constructed U.S. housing units are built in common-interest communities, it matters whether the covenants are enforceable.
The leading case is Bloch v. Frischholz, decided by the U.S. Court of Appeals for the 7th Circuit, sitting en banc, in 2009. Resident Lynne Bloch complained that the management of her condominium building repeatedly removed from her doorpost the mezuzah that she, as an Orthodox Jew, was required to display. She sued, claiming a violation of the Fair Housing Act, which bans religious discrimination. Management responded that the "hallway rules" did not allow anything to be affixed to the doors. The trial court dismissed the lawsuit, but the 7th Circuit reinstated it.
The decision is frequently cited for the proposition that the right to place a religious display on one's property trumps the covenant to which the owner has already agreed. Actually, the panel never reached that question, because it found that Bloch had made out a facial claim of intentional discrimination - - a clear violation of the FHA.
Now suppose there had been no intentional discrimination. Imagine that Bloch wanted to display her mezuzah in the face of an entirely neutral condominium rule. Would she have a religious freedom claim?
One might respond that in that case she would be bound by the terms of her deed. If the rule said nothing on the doors, then nothing could be put on the doors. But the legal scholar Angela Carmella has argued to the contrary, that given the ubiquity of common-interest communities we should in effect treat their boards as quasi-governmental, meaning that residents essentially retain their constitutional rights. In this way, she contends, we can continue to construct "a society in which religious identity may be publicly expressed where one lives."
As Carmella concedes, her proposal would make it impossible for a group of like-minded individuals to construct a community in which there would be no open religious expression. The libertarian in me would hold that they should be able to build such a place if they choose. Carmella's answer is that communities should be constructed around a notion of the common good, and the common good includes our ability to express our deepest commitments -- certainly our religious commitments. And, as a general proposition, I frown on restrictions on how we express ourselves on our own property. What matters as a legal matter is whether you believe, as Carmella does, that limits placed by the boards of common communities should be treated like limits placed by government.
In Wadena, however, nobody seems worried about those questions. Wadena, in fact, is a nice illustration of the poverty of the constitutional rule. Litigants who challenge creches on public property insist, correctly, that government cannot be seen as favoring one religion over another. Yet for a member of a religious minority, I wonder which is more oppressive: the single public Nativity scene in front of the courthouse, or thousands of private ones on the lawn of every neighbor?
Oh, and the original Wadena creche? The one that had been displayed for as long anyone could remember? It was sold to the local ministerial association for $25 and now stands outside a private hospital, where I suspect it has even more viewers than it did before.
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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.
