Elves at the nativity

Jaffe says the ACLU did not have any problem with the Macon County nativity scene on the courthouse property this year. Technically, he’s correct.

Last Christmas, though, the ACLU threatened to sue Macon County unless it modified the nativity scene on its courthouse property. After receiving a letter from the statewide ACLU, Macon officials acquiesced. The Streets of Franklin — a downtown booster organization — purchased secular displays like the one now up of elves ice skating. That meets the Supreme Court standard, according to Jaffe.

“The high court has held that nativity scenes on public property are religious in nature, and in effect endorses religion,” said Jaffe, citing the 1984 case of Lynch B. Donnelly vs. the U.S. Supreme Court.

The ACLU and the county have discussed the nativity scene for six years now. This year, the ACLU sent a reminder to Macon County’s manager and attorney of last year’s problems. Those letters led to the public hearing Nov. 18 where a packed room of irate citizens spoke in favor of keeping the nativity scene solely religious.

“We want our Christmas scene where it’s always been. If it’s moved, it will be a sign of the times, a sad sign,”said Pam Goldsmith during the public hearing.

Several commissioners echoed Goldsmith’s sentiments.

However, Gail Chapman of the Streets of Franklin committee, offered the county several alternatives. Her suggestions came after County Manager Sam Greenwood asked her to come to the meeting with some options in hopes of avoiding an expensive lawsuit that the county attorney said would likely cost as much as $100,000. One of those was to move the scene off public property. Commissioners voted unanimously to keep the display on county property but add elves and other secular characters.

Chapman, chairman of the Streets of Franklin committee, said she was satisfied with the commissioners’ decision about how to handle the controversy — keep it on public property but abide by the law.

“Sure, I think it is a good idea to abide by and obey the U.S. Constitution,” said Chapman.

“The court cases cited said the nativity scene could not be dominant,” said Chapman. “We thought we might could slip it by this year, but we asked commissioners first.”

Carden, of the Alliance Defense Fund, said the ruling on the nativity scene is known by some lawyers as the “Three Reindeer Rule.”

“There are people offended by nativity scenes, so you have to include enough non-religious displays to counterbalance the religious stuff. This is pretty well established in case law,” said Carden. “The mindset is that as long as you have some non-religious items, somehow that makes it OK.”

Again, Jaffe argues that the ACLU is not interpreting the Constitution, merely reminding local officials of what the Supreme Court has said.

“We did not have a problem with Macon County this year. We simply reiterated in a letter what the court has ruled,” said Jaffe.

Teachers in the background

When Haywood students were preparing for the annual “See You at the Pole” before-school prayer meeting earlier this fall, school officials advised teachers they could not participate. A Sept. 16 memo to principals from Associate Superintendent Anne Garrett read, in part, “If this event takes place before, during or after school, teachers cannot participate. ... teachers do not have the right to pray with or in the presence of students during the school day.”

School officials were told they could be present, but only as observers and to keep order. That decision led to several letters to the editor in the county newspaper, The Enterprise Mountaineer. Readers were upset at the school system for not letting teachers participate. School attorney Patrick Smathers was prompted to send a letter explaining the board’s actions.

“While the policy and direction given school administrators may not be the personal desire of our individual board members,” Smathers wrote, “it is the current status of the law which board members must support due to the Court’s decision and their sworn oath to uphold the Constitution.”

Although the school board never altered its policy, says Garrett, a newspaper article saying it had prompted a letter — and a warning — from the ACLU.

“In the article you are quoted as informing the Haywood County School Board that ‘[Haywood County] teachers should have been notified that they could participate [in the see you at the pole prayers] but not lead the prayers.’ This is in direct conflict with the provisions of the Equal Access Act ... and the U.S. Supreme Court,” read the letter from Jaffe.

Garrett said the warning from the ACLU was borne out of a misunderstanding.

Carden, though, says the ACLU’s interpretation of the Supreme Court’s ruling on the See You at the Pole activity is not upheld by case law.

“There is simply no case or trial law that supports this interpretation,” said Carden.

He argued that telling teachers they cannot participate before school in a religious activity merely because students are present violates the teacher’s civil rights.

“To say teachers can’t participate in a religious event when they are not on school time, that is frightening and is the opposite of civil liberties,” said Carden.

Jaffe disagrees.

“It doesn’t matter if it is on school time, what does matter is that it is on school grounds. The rationale is that if school children participate, with teachers, it has the effect of government endorsing prayer, and that violates the Constitution,” said Jaffe.

As for teachers being present, Jaffe said that is OK — to a degree.

“However, if you had 10 kids praying at the pole and 20 teachers to maintain order, that might be suspicious,” he said.

And while the ACLU sent the letter to Smathers this year, Jaffe said the warning was based entirely on the newspaper article in The Enterprise Mount-aineer. So far it has received no reports of any teachers or officials in Haywood County doing anything unconstitutional during this past “See You at the Pole” event.

Misunderstood or wrong?

The ACLU evokes strong feelings in most people. Many remember well the accusation by then presidential candidate George Bush against Michael Dukakis in the 1988 presidential election that Dukakis (governor of Massachusetts) was “a card-carrying liberal, a member of the ACLU.” It was a reflection of a belief by many that the organization — which formed in 1920 and has 300,000 members — has become the defender of anti-American values.

Carden says it is all in the interpretation of the Constitution.

“We don’t believe the Constitution is a living, breathing document. The people who wrote it had gathered information and wrote down what they believed,” said Carden.

“Ideologically, we are at extremes with the ACLU. We believe that our view has the vast weight of historical background and interpretation on its side,” he said.

ACLU backers say otherwise, and point to a long list of landmark issues they have championed over the years: the right of unions to organize in the 1930s, the rights of interred Japanese-Americans in the 1940s, school desegregation in the 1950s, civil rights in the 1960s, abortion in the 1970s, creationism in the 1980s, and flag burning in the late 1980s. In often unpopular stands, the ACLU defended what it believed was the right of minorities to freedoms guaranteed in the Constitution.

“When the rights of one person are violated, the rights of all people are being violated,” said Jaffe. “One day the majority who may oppose some of our positions on some issues may be in the minority. We see it in the context of people’s rights being vindicated.