A 1659 law of the Massachusetts Bay Colony levied a fine of five shillings on "[w]hosoever shall be found observing any such day as Christmas." Christmas, to them, was a "popish" frivolity at best.
We don't fine people anymore for celebrating Christmas, a legal holiday. But local governments can go to curious lengths to purge the observance of winter holidays, Winter Solstice or whatever, if any recognition of the Christmas reality that gave rise to the "holidays" in the first place. This year, in Fort Collins, Colo., a "Holiday Display Task Force" recommended using white lights instead of red and green ones. The objective was to recognize the diversity of "a variety of winter holidays, such as Christmas, Hanukkah, Diwali, Birth of Baha'u'llah, Bhodi Day, the Winter Solstice, Kwanzaa and more."
"Throughout history," the task force said, "the most common theme of winter celebration is light at a time of darkness." The "holiday displays" can include "Symbols of Winter: snowflakes, snowmen, snow balls, ice skates, skis, penguins, polar bears, white lights, etc." Christmas was singled out for special depreciation by the exclusion of red and green lights which could remind people of something. Presumably, that exclusion would not apply to traffic signals. On Nov. 20, sanity prevailed. The City Council rejected the proposal.
Such controversies over Christmas reflect changes in the posture of government toward religion dictated by Supreme Court decisions which lack coherence as well as fidelity to the meaning of the Constitution. Those decisions affect the culture.
In 1984, in Lynch v. Donnelly, the Court upheld the inclusion of a nativity crèche in a Pawtucket municipal display because the display also included "a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures [of] a clown, an elephant, and a teddy bear, hundreds of colored lights [and] a large banner that reads 'Seasons Greetings.'" The purpose of the display, said the Court, was not to endorse religion, but to promote shopping. This has come to be known as the "Three Plastic Animals Rule." As Justice Harry Blackmun accurately said, it reduces the crèche "to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning." Five years later, in County of Allegheny v. ACLU, the Court held that a crèche standing by itself on a courthouse staircase, with a sign saying the creche was donated by the Holy Name Society, was an unconstitutional endorsement of religion. The Court found no such endorsement in the placement of a Hanukkah menorah, a Christmas tree and a "salute to liberty" sign outside the building.
It is difficult to see any objective and predictable principle in such rulings. But what neutrality toward religion was the Constitution intended to require?
The Establishment Clause of the First Amendment forbade Congress both to create an official, established church for the nation and to interfere with the established churches that existed in six states, the last of which ended in 1833. The Clause required neutrality among religious denominations. We lack the space to explain here the process by which the Court has wrongly interpreted the Clause to require governmental neutrality, not among denominations, but between theism and non-theism.
As Justice William Brennan put it, the words "under God" can remain in the pledge of allegiance only because those words "may merely recognize the historical fact that our Nation was believed to have been founded 'under God.'" Under the Court's theory, a statement by a public official that the four affirmations of God in the Declaration of Independence are in fact true would be an unconstitutional preference of theism.
This suspension of judgment on the existence of God implicitly establishes an agnostic secularism as the official religion. Government cannot affirm Christmas as a fact because, according to the Court, it cannot affirm even the existence of God as a fact. That would have surprised the members of the First Congress. From Sept. 24-25, 1789, they approved the First Amendment and directed President Washington to declare a day of "public thanksgiving and prayer ... acknowledging the ... favors of Almighty God." Washington did so, stating that "it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor."
We have come a long way since 1789. But not even the Supreme Court can change the reality of Christmas. As Cardinal Ratzinger agreed, before he became Pope Benedict XVI, the Christmas event "is infinitely more important than the creation of the world." "The birth of Christ," he said, "is an event of a far greater order of significance. God himself comes into the world and becomes a man."
The trend today, he said, is "to separate this festival from Christianity and to reject its Christian beginnings. ... In America, in ... commercialization and ... sentimentality, the display windows of large shops, which in former years were decorated with crèches ... are now equipped with mythical representations, with deer and stags and Santa Clauses, whereby what is truly mythical is set side-by-side with what is Christian. Of course a lingering echo still remains of what touched people when they learned that God became a man. But this is an attempt to keep what is beautiful and touching and to get away from anything in it that makes demands upon us."
And Christ does make "demands upon us." The birth of Christ, unlike that of, say, Aristotle or Jeremy Bentham, is controversial because, unlike all others, Christ makes a continuing claim, in the words of Monsignor Luigi Giussani, the founder of Communion and Liberation, to "absolute importance in our lives. ... If an individual rejects this ... then a fundamental aversion sets in." The continued and focused opposition to public recognition of Christmas is a back-handed recognition of its unique reality and significance.
Benedict XVI recently reminded a conference on the future of Europe that "[a] community that is built ... without remembering that every person is created in the image and likeness of God, ends by doing no one any good." Christmas recalls us to that reality. If we pay attention. Merry Christmas.
Professor Emeritus Charles E. Rice is on the law school faculty. He may be reached at (574) 633-4415 or rice.1@nd.edu
The views expressed in this article are those of the author and not necessarily those of The Observer.
