Politics & Policy

A Merry Litigious Christmas

Christmas is one of the nation's most litigable events.

Alexis de Tocqueville famously said of 19th-century America that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” His observation has become even truer with time, and today he might be tempted to remark that there is “hardly a holiday” in America that doesn’t land in the courts.

Christmas is one of the nation’s most litigable events. This has long been the case, but this year was a tipping point since pro-Christmas lawyers have begun fighting back against the secularists. The press has covered this push-back as if it alone is responsible for envenoming the season. If the American Civil Liberties Union sues every time it sees a crèche, all is quiet in the land; but if anyone has the temerity to defend a Nativity scene in full, public view, then Christmas has regrettably been enveloped in bitter controversy.

Writing in The Weekly Standard last year, Joseph Bottom nicely captured what has been the downward slide toward Christmas becoming the Holiday That Dare Not Speak Its Name. In Somerville, Mass., the city’s “Christmas party” was changed, per the usual practice, to a “holiday party.” But why stop there, Bottom asks, since holiday is scandalously derived from “holy day”? Apparently following this logic, Wichita, Kan., decided to call its “holiday tree” a “community tree.” A few years earlier, Eugene, Ore., got around the problem by banning the display of decorated trees on public property in December altogether.

This grinding march toward an un-Christ Christmas and an un-holy holiday has finally been stopped and even slightly reversed. Secularists, relying on their version of the Brezhnev Doctrine (i.e., any gain is never given up), were shocked to find that Christmas trees in Boston and on Capitol Hill that had been designated “holiday trees” were re-christened “Christmas trees.” Suddenly, in the “war over Christmas,” one side wasn’t firing all the bullets.

One reason that Christmas has become such a battleground is that the legal rules around it are so confusing. The Supreme Court has held that Nativity scenes on public property pass constitutional muster as long as they are part of displays that primarily have a secular purpose. This has become known as “the three-reindeer rule”–throw Santa and some reindeer in and you probably haven’t violated the Establishment Clause. As Judge Frank Easterbrook once put it acidly, this standard requires “scrutiny more commonly associated with interior decorators than with the judiciary.”

The uncertainty means that schools and localities often don’t know whether they are on the right side of the line or not, and when ACLU lawyers come braying, it is safest to find their inner Grinches and shun anything Christmas-related. Pro-Christmas legal outfits have to distribute the most basic reassurances to cities and schools. “Do students have the right to express religious viewpoints in school assignments, reading materials and clothing?” a brochure from the Alliance Defense Fund asks. “Yes. It’s okay to write and speak about Christmas.”

But the fear of ACLU-style lawsuits might be dissipating. In Huntington, N.Y,. a man sued over a display that included a Nativity scene and a menorah, claiming it violated the First Amendment by establishing a religion. Hmmm. Which religion–Christianity or Judaism? A public uproar ensued, and a compromise kept the displays up.

In Chula Vista, Calif., a dance group called the Jesus Christ Dancers was prevented from performing at a holiday festival in which a traditional Hawaiian prayer to the gods was performed and a menorah was lit. The mayor has profusely apologized since, but the American Family Association has filed a suit against the city nonetheless. Thanks to this and similar actions, schools and communities that have thought twice about associating themselves with anything related to Christmas or Christianity will think twice about disassociating themselves from them as well.

It’s not an ideal way to run a holiday, of course, but so it goes in a society as litigious as ours. Merry Christmas!

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

(c) 2005 King Features Syndicate

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