The American Civil Liberties Union (ACLU) is known for being more of a curmudgeon and general pain-in-the-ass than as an organization truly concerned with the civil liberties of Americans.  No time is more confirming of that than the last six weeks of the calendar year.

From opposing city Christmas displays to challenging schools for having Christmas observances, the ACLU usually centers its Grinchness on public entities.  I’m no Constitutional attorney and this subject has been debated for a very long time, but I’ll throw in that I don’t believe a city hall crèche violates the Constitution or the intent of the Founding Fathers.

The document does not include a “separation of church and state” clause.  The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  I agree with the long-held argument that the intent is to prohibit Congress from creating a religious body such as the Church of England and/or denying individuals from exercising their religious preference.

But this post isn’t about that.  With all the ACLU hoo-ha about town halls, public thoroughfares, schools, government buildings, etc., have you wondered why the group doesn’t have an equally strident effort to do away with Christmas as a Federal holiday?  What is a more governmentally sanctioned recognition of a religious event than the U.S., state and local authorities giving paid time off public servants?  Isn’t that infinitely worse than allowing “Merry Christmas” in grade schools?

The answer is that the government doesn’t “celebrate” Christmas as a religious event.  Officially, it’s a “traditional” holiday as is Thanksgiving.

Given that, why can’t public entities observe Christmas on their respective premises and even say “Merry Christmas?”   As much as it pains me to say it, I suppose limiting the observances to the more secular aspects (Santa Claus, Frosty, Jingle Bells, etc.) would likely be more appropriate, but there is no reason why public employees can’t wish a “Merry Christmas” on public property and in their public capacity.


Does anyone else find it more than hypocritical for Jews like Barbra Streisand and atheists such as John Lennon recording Christmas songs?


2 thoughts on “Christmas

  1. Reminds me of a brat that would hoist its’ finger at a funeral procession.
    That same brat would never hoist its’ finger at a headless horseman.


  2. While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment’s terms and legislative history, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of a ribbon-cutting ceremony for its new church.

    James Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    When discussing separation of church and state, it is critical to distinguish between the “public square” and “government.” The principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.


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