Marci A. Hamilton

The Constitutional Fight Over Holiday Symbols, and the So-Called "War on Christmas"

By MARCI A. HAMILTON
Thursday, December 24, 2009

Recently, the ACLU threatened to sue Luzerne County, Pennsylvania, for putting a crèche and menorah on its courthouse lawn during the holidays. The primary constitutional problem was that the religious displays were in front of a courthouse and not tethered to a neutral government purpose.

The placement in front of a courthouse was particularly problematic. The Supreme Court held a crèche display in a courthouse unconstitutional in County of Allegheny v ACLU and a display of the Ten Commandments in a courthouse unconstitutional in McCreary County v ACLU. The Supreme Court has upheld a display including a menorah, Christmas tree, and a salute to liberty in County of Allegheny, where they were not in or in front of a courthouse, as well as a collection of secular holiday symbols with a creche in a shopping district in Lynch v. Donnelly.

Context is everything in these cases, but this set of two religious symbols in front of a courthouse probably crossed the line and certainly guaranteed likely lengthy litigation. The Luzerne County display has been erected each year for a number of years and, predictably, many local Christians and Jews were offended that their entrenched symbols might now be removed.

Then, much to its credit, Kings College, a private Catholic institution in the area, offered to move the symbols to its own grounds. That was the perfect solution: The symbols would still be displayed, but not by the government.

But then, many Luzerne County citizens objected to their holiday symbols being removed from the courthouse lawn, where they had traditionally stood. And in the end, the Luzerne County commissioners rejected Kings College's generosity.

As I will explain, the Luzerne County dispute is part of a larger issue that should concern us all.

Why the County Should Have Simply Accepted the Kings College Offer

Let's imagine, for a moment, that the Luzerne County commissioners had accepted the Kings College offer. The symbols would have still been on view for all to see, but there would have been no possibility of confusion on the part of onlookers as to whether the government was supporting a religious display and/or sending a religious message.

Of course, a private Catholic institution's endorsement of such religious symbols violates no constitutional mandate. Indeed, no government could tell Kings College to remove the symbols because the government disapproved of them. As a matter of constitutional law, the difference would be that, rather than standing as a possible Establishment Clause violation as they had in the past, the symbols would now actually be protected by the Free Speech Clause.

Therein lies the crucial constitutional point: When the government hosts such symbols, it risks endorsing particular religions to the detriment of constitutionally- mandated neutrality, but when a religious entity chooses to express itself through such symbols, the government is constrained from suppressing the message the entity has chosen, subject to extreme situations, e.g., the symbols constitute "fighting words" or are obscene, neither of which is remotely relevant here.

Thus, the free market in ideas and expression would have been preserved and fostered by the Kings College solution. The move from courthouse to religious college would have eliminated the constitutional risk, while still maintaining the images in the public eye, and still keeping them in public discourse.

Now, the ACLU and the Luzerne County commissioners (likely in consultation with a number of local priests, ministers, and rabbis) will be negotiating about what the display can contain. That's a shame, for a wholly constitutional and straightforward solution was offered. But that is what happens when the majority puts pressure upon towns and the ACLU, seeking to force them to cave in to its demands. There was a time when the ACLU had mojo on these issues; unfortunately, the organization has now been co-opted by religious groups' pressure in this context and elsewhere.

A "War on Christmas"? More Like a Search for Constitutional Peace

Part of the fury that has been sparked in Luzerne County – and other towns facing similar disputes – is attributable to the savvy public relations coining of the phrase "War on Christmas." Those who use the phrase, in this context, mean to suggest that constitutional constraints on the ability of the government to endorse religious symbols and messages are an attack on Christmas.

The argument is absurd. After all, the public square is saturated with Christmas messages and values. Surely, Christmas will do just fine without government support.

Yet many right-wing Christians have worked hard to set up a dichotomy between believers and non-believers, with some calling the latter "secularists." They have cannily encouraged their believers (and radio listeners) to disrespect those whose beliefs are different, and even to hate the non-believers. For instance, the comments in the Wilkes-Barre Times-Leader (a major Luzerne County newspaper) following the news stories about the courthouse-lawn displays conveyed the full, awful flavor of this religious triumphalism. The base hatred of "atheists" was palpable.

These attacks send a message, and create an atmosphere, that is the very opposite of the message sent by the familiar Christmas phrase "Peace on Earth." And the truth is that, if there is any war being waged during contemporary holiday seasons, it is a "War on Non-believers" by Christians, not a "War on Christmas."

Right-Wing Christians' Choice: Embrace Diversity, or Be Marginalized

Today, the true threat to Christianity does not come from non-believers, but rather from the emerging kaleidoscopic of believers, including the spiritualists who have no use for organized religion, but maintain religious beliefs nonetheless. Christians are at a crossroads. They can embrace the diversity that is the United States, seeking Peace on Earth by loving the neighbor who is not of their faith. Or, they can make themselves increasingly a part of the fringe of the United States.

The silliest part of the movement to ensure Christian dominance during the holidays is the insistence that the phrase "Happy Holidays" is somehow anti-Christmas or even anti-Christian. The argument is that once upon a time, we "all" used to say "Merry Christmas" to everyone, and thus, saying "Happy Holidays" is an abandonment of Christmas.

To the contrary, I would posit that the increasing comfort with "Happy Holidays" as the catch-all holiday phrase rather than "Merry Christmas" is just one of the many societal shifts being adopted to bring the array of faiths peacefully and productively into one warm holiday embrace. The phrase holds within it the antidote to the poison that is introduced by those who label our shifting cultural circumstances a "war." Far from being evidence of a war, it is on the path to peace. The reality of intense diversity cannot be avoided, so those who previously held dominance must now adjust and accept or find themselves largely irrelevant to the cultural discourse.

Each year, my family gathers for an early celebratory holiday dinner. Each of our children invites a friend to join us. As we sat around the table last Friday night, my husband commented that this was a truly ecumenical gathering. My mother and I are Protestant; my husband and children, Catholic; and their friends, Jewish and Muslim. We are very lucky to have terrific kids and their friends are also super – high achievers, well-mannered, and a pleasure. The evening was magical and memorable. As we all parted, I sincerely and happily wished my children's friends "Happy Holidays." To do anything else would have been not only a mistake, but a hurtful insult -- a sign that I did not care to know or notice what our guests, and our friends, believed and cherished. On this Christmas Eve, I wish most for Peace on Earth and Good Will to All.

UPDATE 12/29/09: This piece has been edited to reflect that the religious-display controversy involves Luzerne County, not the city of Scranton; and that the newspaper which quoted comments about the displays was the Times-Leader of Wilkes-Barre. – Ed.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com.

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