« The Irrepressible Myth of Rethinking and Taking Things Seriously: A Reply to Wexler | Main | Has Senator Leahy Forgotten Something Rather Important? »

Monday, December 08, 2008

And so this is Christmas ... or not

Since I am spending the holidays here at Prawfs and am about to accede to my wife's insistence that I erect various symbols of the "Winter Solstice" (or at least the Christian and western celebration that occurs about that time) around our house and property -- think of Clark Griswold --  I thought it meet and proper to acknowledge the beginning of the annual "Christmas Wars." This year's Fort Sumter seems to be the Washington state Capitol building

There is, of course, a triviality to all of this. It does not establish religion to place a Nativity scene in front of city hall anymore than the failure to do so plunges us into a Godless abyss. But these battles aren't about mangers and menorahs which is one of the reasons that the Supreme Court's approach to the matter based, as Justice Scalia puts it, in considerations more commonly associated with interior decorating than the judiciary" makes no one happy.

What brings this all to mind is less our December ritual of dueling displays and Holiday reprise of the old Miller lite commercial in which "less filling/great taste" becomes "Happy Holidays/Merry Christmas," than it is a recent decision of the European Court of Human Rights in Dogru v. France and Kervanci v. France upholding the French practice of barring Muslim girls from wearing Islamic head scarves in physical education classes over a claim that it violated the girls' freedom of thought, conscience and religion under Article of the European Convention on Human Rights.

What caught my attention is the court's emphasis on the public secularism upon which the French Republic has been based. As a consequence, the court observed, the "citizen must respect the public arena that is shared by all" and, at least in the public school context, believed that the state could exclude ostentatious and conspicuous religious displays that might create undue pressure and exclusion (although here of the students choosing to adopt the religious display.)

While depending on the particulars, the case might be decided similarly here, the frank embrace of secularism is not as readily reconciled with our tradition. While we certainly have had - and still have - judges and scholars who equate secularity with neutrality, there is also a strong counter tradition, supported, I think, by the postliberal understanding of the nature of religion, i.e., that it is shaped and sustained in communities that are permeable and influenced by the larger culture. It is not simply private and is vulnerable to outside influence. A naked public square is not silent and this is why "Happy Holidays" is not seen by all as a happy resolution.

Of course, most of the Christmas cases seem to turn on whether something is government speech as opposed to private speech in a setting in which attendance is compulsory. That may mandate a different outcome but, as the state has grown larger, the dialectic is the same. Does pluralism require the suppression of points of difference? In a truly pluralistic world, is that even possible?

More, I'm sure, to follow - both in Christmas Present and Christmas Future.

Posted by Richard Esenberg on December 8, 2008 at 11:58 AM in Religion | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference And so this is Christmas ... or not:


Well, I can't speak on French law, but I guarantee you that if someone at Marquette Law (or for that matter, during my time at a public high school) demanded I remove my kippah because it caused "undue pressure and exclusion," I'd raise bloody hell about it. I can't imagine anyone who wouldn't.

I do understand that these battles over Nativity scenes vs. menorahs or "Merry Christmas" vs. "Happy Holidays" seem trivial, but I'd argue that it becomes a bit more understandable when you're actually faced with it. A quick story: I grew up in a town in Central Massachusetts where they'd always put a huge Christmas scene up in town square. A collective of Jews in town signed a petition to present to the mayor saying "Look, we're fine with you putting Christmas stuff up. Just give us a little room on the town square to put up a menorah." The mayor's response? Essentially it was "No, I don't want to, and you'll do so over my dead body." Now, I'm all for people decorating for one faith when they gave the others free reign to join in and it's declined, but how would you recommend they respond when the local government flatly refuses? Mind you, this is in the liberal Northeast, so I can only imagine what it'd be like in the South where religion is more intertwined into society.

I think that, quite simply, this would be a whole lot of nonsense over nothing if everyone simply relied on themselves to represent their own beliefs. And for most people I honestly believe that's what happens. However, as long as there are some who feel that having some power gives them the bully pulpit to bash others over the head with their faith, we're going to keep having these problems. It's a classic case of several bad apples spoiling it for everyone else,

Posted by: Andrew Golden | Dec 8, 2008 9:00:54 PM

The French emphasis on secularism as expressed in the statement that the "citizen must respect the public arena that is shared by all" is essentially reversed in current American law. Not only must the public arena respect a citizen's religious expression, even private entities are substantially required to respect religious expression. (Dress codes with the effect of prohibiting Islamic scarves or other religious garb are beacons for litigation).

Also interesting is the long-term history of the "Christmas wars." In the mid-17th Century, the Puritans abolished Christmas as too secular (or worse, Roman Catholic).

Posted by: JP | Dec 8, 2008 1:57:21 PM

The comments to this entry are closed.