The Soap Box

Nothing seems to cause rancor and vitriol, stimulate avarice and conspicuous consumption, and create division and controversy in America today like Christmas does. What a wonderful time of year. In the interest of trying to inject a bit of unwanted sanity into our winter revels, this seems like a good time to explore Christmas’s long and glorious relationship with that other great American institution, our Constitution.

In 1787, the U.S. Constitution was ratified; in 1791, the Bill of Rights was ratified, including the First Amendment, which states (in part), “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” In 1870, Congress passed and President Grant signed a bill making Christmas (as well as New Year’s Day, the Fourth of July, and Thanksgiving) a federal holiday. From then until 1984, there was essentially no controversial interaction between Christmas and the federal government.

So it’s not exactly a long and glorious history. It wasn’t until nearly one hundred years after the Constitution was ratified - when the founding fathers and even Lincoln were long dead and gone - that the government had anything officially to do with Christmas. And it was more than another hundred years before anyone actually noticed that the government had anything to do with it. It could be that Christmas was ignored by the Supreme Court (the defenders of the Constitution) for so long because the Establishment Clause and the Free Exercise Clause of the First Amendment (stated above) are so ambiguous. More than likely it was ignored because during much of that period, there were so few non-Christians in the country and, much like black people or women, it was acceptable to pretend that they didn’t have constitutional rights anyway.

That’s not to let the Establishment Clause and the Free Exercise Clause off the hook. They are short yet exceedingly difficult to interpret and apply. There is at times an inherent contradiction between their twin proscriptions: To prohibit prayer in school might constitute impeding the free exercise of religion, while to permit school prayer could be considered establishment of an official religion. Establishment Clause jurisprudence dealing with these questions has always been rather fluid. But the closest thing we have to a rule for determining whether the government has violated the provision is called the Lemon test. It has three parts: 1. The law must have a secular purpose; 2. The primary effect of the law must not be to promote or inhibit religion; and 3. The law must not create an excessive entanglement between the state and religion. In an attempt to clarify the Clause’s broad language, some would say the Justices actually succeeded in making it more ambiguous.

Enter Christmas once more and the first major spat over a public Christmas display, the inevitable result of 100 years of government-sanctioned Christmas celebration. In 1984, the Supreme Court considered the constitutionality of a Christmas display that included a “Seasons Greetings” sign, candy-striped poles, Santa, reindeer pulling his sleigh, lots of lights, a Christmas tree, carolers, a clown, an elephant, a teddy bear, and the problematic creche. The question facing the Court was whether the inclusion of the creche in the display constituted an attempt by the state to convey a religious message in favor of a particular religion. The majority concluded that it did not; the intent of including the creche was merely to honor the religious roots of the secular “Christmas holiday season.” As support for its position, the majority mainly cited the fact that Christmas has been celebrated by our government for many years, concluding that it must therefore be constitutional. Justice O’Connor’s separate opinion stressed the fact that the federal holiday is a cultural one, even if it has religious roots, and therefore can be celebrated by the state. Both opinions essentially ignored the Lemon test, focusing exclusively on whether the effect of the display is to endorse a particular religion, further undermining and yet focusing Establishment Clause jurisprudence.

The holding that a Christmas display including a creche is constitutional came to be known as “The Reindeer Rule.” In a nutshell, as long as the state also includes symbols of the secular “Christmas holiday season” - such as reindeer, Santa, candy canes, and (for reasons unknown) clowns, elephants, and teddy bears - even displays in which some explicitly religious symbols appear will not constitute a state endorsement of a particular religion and will pass constitutional muster. So, rather than an assault on Christmas-loving people everywhere, the secularized “holiday season” and watered-down Christmas symbols that so many conservatives now rail against come directly from the Supreme Court itself and more accurately constitute an attempt to keep Christmas constitutional. The Court has ruled, in so many words, that it is constitutional for the state to celebrate the secular Christmas holiday season, but not the Christian Christmas. In the Court’s opinion, we should consider them two separate holidays.

What, then, is a poor public school to do when they wish to have a “holiday” concert? What songs may the children sing without violating our core priciples of democracy? Since the Supreme Court cannot devise a bright-line test for everyone to follow, a thorough review of Christmas songs is necessary to separate the secular from the religious; then, the program may include a slight mix of the religious along with the secular, just to honor the religious roots of the Christmas holiday season. The following is a very limited list of such songs and their new disginations, where CHS represents secular Christmas holiday season songs, and CC represents religious Christian Christmas songs:

1. All I Want for Christmas is My Two Front Teeth: refers only to gift giving and growing pains. CHS
2. Frosty the Snowman: a song entirely about a snowman with no reference to Christmas whatsoever. CHS
3. Little Drummer Boy: a poor boy visits the newly-born King, Jesus. CC
4. We Wish You a Merry Christmas: a gang of children make demands for pudding while bringing tidings of the season. CHS
5. Joy to the World: rejoicing at the arrival of the King, Jesus, on earth. CC
6. O Come, All Ye Faithful: an exhortation to come and adore the Christ child. CC
7. Deck the Halls: refers only to holly, yule-tide, and yule logs, all originally pagan symbols. CHS
8. Silent Night: praise for the night on which the son of God was born to a virgin mother. CC
9. Rudolph the Red-Nosed Reindeer: the story of a picked-on reindeer who overcomes his adversaries. CHS
10. Jingle Bells: a song recalling with fondness dates had on a horse-drawn sleigh. CHS

Even assuming such designations can be arrived at without disagreement, there is as yet no constitutionally acceptable ratio of religious Christmas songs to secular Christmas holiday season songs in a holiday concert. Furthermore, it’s not clear whether that ratio would change depending on the maturity of the children and their ability to understand that Christian Christmas songs have been included in order to impart a purely historical message, as opposed to a religious one. To be safe, there should be a sliding scale - with an inverse proportional relationship between the children’s ages and the number of securlar songs required per religious song - and in no event should any fewer than three secular songs be required per religious song sung. If the stage can be decorated with clowns, elephants, and teddy bears, all the better.

What insanity. Maybe there is a war on Christmas after all, and the Supreme Court is its four-star general. Hogwash. A war on Christmas is like a war on slaveholding. The reason for all the ridculousness is that these are the lengths one must go to in order to accommodate a patently unconstitutional tradition. And the Supreme Court is willing to make fools of us all rather than strike down state-sanctioned Christmas because it has ignored the issue for so long and allowed it to become entrenched, just as it did with racism and slavery. It took a very brave Court to outlaw state-sanctioned segregation, one which has clearly not been matched since.

Bad constitutional theory is often based on legal fictions - ideas that are not objectively true, but which, once accepted, help the Court to reach its desired outcome - such as the notion that slaves are not men, or that separate can be equal. In Christmas jurisprudence, the Court has relied on two principle legal fictions, the first being that there is a secular Christmas holiday season, and the second being that Hanukah is likewise a cultural event in addition to being a religious one.

As evidence that there is a secular Christmas holiday season, the Court relies largely on the commodification of the holiday, along with the tendency of the more secular Christians to focus on the “non-religious” aspects of the holiday, such as gift-giving, Santa, Christmas trees, and Christmas lights. For every religious holiday of every denomination, there are less orthodox followers who celebrate that holiday in more secular ways; even among the religious, holidays are celebrated by different sects in varying yet equally pious ways. Following the Court’s logic, for each and every religious holiday, some particular manner of observing it could be declared by the Court to be a secular form of observance - simply because it appears so to them - which the state can adopt, a proposition that every sect of every religion (and the founding fathers) surely would condemn.

The symbols of Christmas which the Court declares as secular - Santa and his reindeer, Christmas trees, etc. - although having their origins in pagan traditions, have not ever appeared in the traditions of any religion other than Christianity. In fact, these symbols - along with the date December 25 - were purposefully incorporated into the Christian Christmas holiday centuries ago in order to assert Christianity’s dominance over the followers of paganism. Now hundreds of years removed from this shift, these symbols have become fully Christian and appear in virtually every church at Christmastime without suspicion. While upholding the constitutionality of Christmas, Justice Blackmun even hinted at the fact that Christmas is not actually a secular holiday at all (and at the fabricated connection between Christmas and Hanukah) when he referred to Hanukah as “a contemporaneous alternative tradition.” If the Christmas holiday season is a secular, national holiday, why is there a need for an alternative? Are we not all Americans? And why is there no alternative Jewish Fourth of July, or Thanksgiving?

To the extent that Hanukah has any cultural, non-religious significance, it is only as a stooge of Christianity, which has also begun to coopt and distort the symbols of Hanukah in order to maintain its dominance over Judaism in America and its constitutionality, largely in concert with the Supreme Court. In response to the saturation of Christmas in America and the alienation it causes, many of the more secular Jews (with the willing participation of the Christian culture) have slowly remodeled Hanukah in the image of Christmas. It has been given equal prominence with Christmas even though it occupies an obscure, unimportant place in the traditional Jewish calendar (it is actually the least important, not most important, Jewish holiday). The exchange of Hanukah gifts (Christmas gifts with different wrapping paper) has even been introduced, a practice entirely outside the Jewish tradition and completely unrelated to the actual holiday. Because the Court has essentially held that state-sponsored Christmas is not constitutional unless it is accompanied by secular symbols or the symbols of other religious traditions, the state has latched onto and promoted these bastardized Hanukah traditions, the result of Christianity’s proselytizing effect in the United States, leading the state to contribute to the diminution of one faith’s traditions in order to preserve the charade that promoting the traditions of another faith is constitutional. The greatest irony is that the true Hanukah is the celebration of the Jewish people’s victory long ago over an occupying power which had attempted to force them to convert.

Hanukah’s uniformly religious significance is evidenced in Justice Blackmun’s uneasy acceptance of the Hanukah menorah as a secular symbol of the holiday only because there are no “reasonable alternatives that are less religious in nature.” Indeed, the menorah is a purely religious symbol. The traditional menorah actually has only six branches and used to reside in the Holy Temple in Jerusalem, the center of all Judaism; it has come in Jewish culture to stand somewhat in the stead of the destroyed Temple itself, and it is now the official emblem of the Jewish State of Israel. Even the Hanukiah - the type of menorah used on Hanukah - has no cultural significance beyond the religious miracle it represents. Blackmun further stated, “It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree.” Even in their attempts to save the mighty Christmas tree from constitutional disgrace, neither cities across the nation nor the highest court in the land can find a secular symbol of Hanukah . . . because they have not yet entirely succeeded in creating one. To resolve the matter, at least until the menorah is fully secularized, the Court will simply give it a pass.

There has been an uneasy relationship between Judaism and Christianity from the start, and Christmas is the epitome of that tension. It is with the story of the birth of the Christ that Christianity distinguishes itself from Judaism; the essence of Christianity is that Jesus was the messiah, the son of God, and without that belief, Christians would still be Jewish. The Jewish faith utterly rejects Jesus as a divine being, and the Jewish people’s stubborn adherence to this point of view has been the reason for millenia of forced conversion, segregation, expulsion, torture, and even genocide. In the face of all this, for millenia, Jews have been faithful to the First Commandment: I am the Lord, your God; you shall have no other gods before me. But the Supreme Court expects Jews to surrender their faith now to the town Christmas tree lighting.

The word Christmas means “the festival of the Christ,” a phrase which alone is anathema to Judaism. Christmas tree; Christmas lights; Christmas holiday season. Nothing could run more counter to a belief in Judaism than accepting so much as the name of the holiday, never mind its supposedly secular facets. Regardless of the number of non-religious songs sung before or after, there is no way for Jewish people to reconcile with the First Commandment uttering the words “Silent night, Holy night!/Son of God, love’s pure light/. . . Jesus Lord at thy birth.” The Supreme Court’s approval of the state-sanctioned Christmas holiday season cannot help but endorse the Christian religion, and unwittingly results in state-sponsored religous conversion of one faith’s holiday to another’s. If that is not excessive entanglement between the state and religion, then the phrase has no meaning.

Justice O’Connor teaches us that the danger of the state endorsement of religion is that it says to non-adherents that they are not “full members of the political community.” Giving a child the choice violating her faith, just for a moment, to praise Jesus at the holiday concert for historical reasons, or else standing quietly while the rest of her classmates do so in front of the entire community, does just that; it says to her that, because of her faith, she must be excluded. It is a singularly embarassing, alienating, and painful experience that the majority of school children will never know; it should be one which no school children ever have to know again.