Is Christmas Unconstitutional?
Does the Christmas holiday violate the Constitution?
Happy Holidays! At this time of the year, our thoughts turn to mistletoe, eggnog, and . . . the separation of church and state. Yes, it’s time for Legal Lad’s annual look at the Constitutionality of Christmas.
This year, we have the usual controversies about public displays of nativity scenes and so forth, but there’s also a new spin. The Obama Administration recently proposed a tax on Christmas Trees – a move which some people blasted as an unconstitutional attack on religion. .
Why is Christmas a National Holiday?
Christmas goes back a long way, or so I’m told, but as a matter of US law, the holiday got its start in 1870. In that year, President Ulysses S. Grant signed into law a bill declaring Christmas to be a national holiday. And that law is still on the books–section 6103(a) of Title V of the United States Code, in case you were wondering.
The reason why many people appear to be surprised by the official status of Christmas probably has something to do with the so-called Establishment Clause of the Constitution. The First Amendment to the Constitution forbids Congress from making any law “respecting an establishment of religion.”
Does Christmas Violate the Separation of Church and State?
In 1998, an Ohio lawyer named Richard Ganulin sued the federal government, seeking to remove Christmas from the list of federal holidays. Enduring the inevitable comparisons to the Grinch who stole Christmas, Ganulin argued that the official status of the Christmas holiday amounted to a government endorsement of Christianity, in violation of the Establishment Clause.
In 1999, the federal district court dismissed Ganulin’s lawsuit, holding that “the establishment of Christmas Day as a legal public holiday does not violate the Establishment Clause because it has a valid secular purpose, it does not have the effect of endorsing religion in general or Christianity in particular, and it does not impermissibly cause excessive entanglement between church and state.” That decision was later upheld by the U.S. Court of Appeals for the Sixth Circuit.
Can the Government Recognize Other Religious Holidays?
So, it’s okay for the government to shut down on Christmas–and honestly, who would notice anyway–but can the government do anything else to recognize a specifically religious holiday? Can a state or local government, for example, place a nativity scene or a menorah on public property?
If you ask the Supreme Court, you’ll discover that the answer is a resounding “maybe.” Consider the fact that on a single day in 2005, the Supreme Court held that a display of the Ten Commandments at the Texas State Capitol was constitutional whereas a similar display in a Kentucky courthouse was not–meanwhile the US Supreme Court building itself features no fewer than three representations of Moses bearing the Ten Commandments.
Can the Government Display Religious Holiday Symbols?
When it comes to holiday displays, the Court looks at the specific context of the display and tries to decide whether the government appears to be endorsing a religious message. In 1984, the Supreme Court held 5 to 4 that a city-sponsored crèche in a public park did not violate the Establishment Clause. The display in question was found to have included lots of “secular” symbols, such as a Christmas tree, a Santa Claus house, a dancing elephant, a robot, a teddy bear, and cut-out figures of a clown.
But then five years later the Court took a different view of a crèche scene placed on the main staircase of the county courthouse. In this case, there were no robots or teddy bears, but a simple (and probably distinctly more tasteful) nativity scene with a banner proclaiming “Gloria in Excelsis Deo” (which means “Glory to God in the Highest”). Ignoring the fact that relatively few of the locals were actually fluent in Latin, the Court held that the presence of the banner contributed to the scene’s religious nature. In the same case, however, a majority of Court also held that a nearby display featuring a Christmas tree and a menorah did not violate the Establishment Clause. As one legal commentator pointed out, it seems that the relatively secular Christmas tree “neutralized” the religious message of the menorah.
Can The Government Tax Christmas Trees?
In November 2011, the Agriculture Department announced a new 15 cent tax on fresh Christmas trees, the proceeds of which would go to a fund to improve the image of Christmas trees. Although the tax was mocked by some people – after all, Christmas trees already have a pretty good image – the tax actually raises a number of serious constitutional issues.
First, there is the issue of Free Exercise of Religion – which is guaranteed by the First Amendment. The “public display” cases I’ve just discussed certainly suggest that some courts view Christmas trees as an inherently religious symbol. If that’s the case then putting a tax on them would significantly burden the “free exercise” rights of Christmas celebrants. Another potential problem is the fact that under the Constitution, only Congress has the power to impose new taxes – it’s that whole “taxation without representation” thing.
If you find yourself offended by Christmas or Hanukkah displays on public property, you might have a valid case under the Establishment Clause. As I’ve indicated, the courts take a very fact-specific approach to the issue. But on a deeper level, you might want to take a deep breath before launching such a suit, since litigation is a long process and will haunt you like the ghost of Christmas yet to come. You might just prefer to relax with a nice cup of punch, and enjoy the, er, holidays.
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About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).