Festivus for Florida: Designated Public Forums are ‘Come one, Come all’ (including ‘Airing of Grievances’)

Following the approval of a nativity display in Florida’s State Capitol rotunda–an area designated as a ‘public forum’–Chaz Stevens obtained approval to display a Festivus Pole also on the grounds. Constructed of empty Pabst Blue Ribbon Beer Cans and PVC pipe, the minimalistic monument is a reference to the holiday “Festivus” in the popular ’90s sitcom “Seinfeld.” Stevens told NPR’s Jessica Palombo that the move was a protest against the approval of the nativity display, saying “The government shouldn’t be in this business of allowing the mixture of church and state.” Read or listen to the full story here.

This “First Amendment Area” is a designated public forum. By Brandt Luke Zorn (Photo taken by Brandt Luke Zorn) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

This is perhaps one of the more amusing episodes in the endless controversy surrounding religious symbolism in and around public institutions–a subject of debate which often involves two elements of the First Amendment pitted against each other: the Free Exercise Clause versus the Establishment Clause (“Congress shall make no law respecting an establishment of religion . . .”).

Quoted in the NPR report, Howard Simon of the American Civil Liberties Union’s Florida Chapter said the state cannot discriminate against the Festivus pole, nativity display or any other symbolic expression in the rotunda because it is specifically designated as a “public forum.” (Another application for a display is currently pending from a group called Satanic Temple). In a specially-sanctioned free speech zone, religious and non-religious expressions alike must be permitted.

However, the courts have asserted time and again that the principles of a “public forum” don’t necessarily or automatically apply to every public venue. For example, public schools and courthouses, while government properties, are not necessarily considered public forums. Therefore the Establishment Clause has been cited as the Constitutional basis for the Supreme Court’s 2005 decision calling for the removal of the Ten Commandments from some courthouses, as well as the discontinuation of school-led prayer.

While government-designated public forums are venues for free expression of all kinds by private individuals or organizations, the Establishment Clause limits religious expressions in contexts where they would reasonably be viewed as a governmental endorsement, preference or promotion of one religion above others–or religion in general above non-religion.

Far from inconsistent, these Constitutional clauses get along quite well—it remains to be seen whether Santa and the Flying Spaghetti Monster can do the same.