It does not take a sophisticated legal realist to recognize the hopelessness of any claim that the status of Christmas as a state or federal holiday violates the Establishment Clause. Justices don’t want to be the greatest grinches of all time.
And, in any event, under current law it is clear the current Christmas holiday is constitutional. It has a secular purpose and context as well as a religious one—most importantly being the anchor of the holiday season that more than any other boosts consumer spending. Evaluating Christmas as a holiday is a bit like evaluating Christmas displays themselves for constitutionality. A secular context, like enough dancing reindeers or increased GNP, can redeem the religious content. It may seem odd to a layman but the more crassly commercial Christmas becomes, the more it becomes legally safe as a holiday.
But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause. Christmas was first declared a federal holiday in 1870. At that time Christmas was a predominantly religious holiday without the overwhelming commercial aspect of our contemporary world.
As far I can tell, there was no substantial objection to the holiday on the basis of the Establishment Clause. The lack of objection to giving official status to a predominantly religious holiday suggests that the meaning then attributed to the Establishment Clause does not comport with the so-called “endorsement test” employed today to test for violations of the Clause. The government proclaimed a Christmas holiday, although that proclamation, like the forbidden religious Christmas display today, may give the appearance of endorsing a religion.
Recognizing the constitutionality of religious holidays, however, is consistent with the so-called “coercion test” for the Establishment Clause that holds that only coercive support of religion, like forcing citizens to pay taxes to a church, triggers its prohibition. A holiday, even one which is predominantly religious, is not coercive in this respect. Even if it suspends commercial obligations till the next day, as does the bank holiday created by the 1870 law, citizens will not be made substantially worse off by a brief delay that is applied equally to all.
Now there are many possible objections to the relevance of this evidence for the original meaning of the Establishment Clause. The Establishment Clause was enacted in 1789—years earlier than the federal holiday was created. But much modern scholarship concludes the entire Bill of Rights was applied to the states through the 14th Amendment in 1868—just two years before the holiday declaration. If so, this Christmas holiday act is relevant evidence, assuming, of course, that the incorporated Establishment Clause has the same meaning with respect to states as the original one has with respect to the federal government—another difficult issue.
And some constitutional theorists might object to this type of evidence entirely, because it concerns an “an expected application” of a constitutional principle rather a parsing of the language of the principle itself. Mike Rappaport and I have argued that such a dichotomy is false. The meaning of moral and legal principles can sometimes be best be pinned down by looking at their applications.
I would spend more time on these interesting objections and assumptions but for the need to go wassailing myself. Merry Christmas to our readers!