Xmas and the First Amendment

[John_Mace]

@Wendell_Wagner

John Mace (and anyone else in this thread arguing that Christmas is obviously a religious holiday and therefore making it a legal holiday is obviously a violation of the separation of church and state), you seem to be making the following two assumptions:

1. Any word used in legal arguments must be exactly and precisely defined.

2. Any legal distinction must be precise or it can’t be used.

These are both wrong. The first is wrong because language doesn’t work that way (and the human mind doesn’t work that way). I recommend that you read Women, Fire, and Dangerous Things: What Categories Reveal about the Mind by George Lakoff. The categories created by words in natural languages are always imprecise. In this case, it means that there’s no simple category of religious holidays. Some holidays are more typically religious than others, but that’s all you can say.

The second is wrong because a great deal of legal distinctions are about categories with no precise boundaries. For instance, what does it mean that a jury is supposed to declare a defendent guilty only if there is no reasonable doubt? I remember my one time on a jury. The judge carefully instructed the jury that this didn’t mean that we could only convict if there was no possible logical doubt. He didn’t define what the boundary was for a reasonable doubt, since we were expected to decide that for ourselves. A lot of the law works like this. No state establishment of religion is considered another case of something with no precise boundaries. If there is no significant effect of a law in establishing religion, then it’s considered to be legal. There is no legal definition of what significant effects are.

I know that this is hard for some of us to accept. Hey, I’m a mathematician and a trivia expert, and I’ve tried to make precise, incredibly picky distinctions my whole life. But language doesn’t work that way and law doesn’t work that way. Sorry about that.

I don’t think so. I’m not requiring a precise definition of Christmas, but citing statistics about how people in the US perceive it, how they celebrate it (the day, not the “season”) and the fact that it is, after all, the 2nd most important Christian Holiday (after Easter).

I’m also referencing the test defined by the SCOTUS to determine if something does or does not violate the establishment clause.

I have no doubt that some jurists would find no violation of the establishment clause, but I suspect some would. I’m arguing my position, which is the latter.

[Guinastasia]

@Flyer

And you would be wrong. I have already pointed out two things–#1, “establishment of religion” is not a question of which religion, but rather which Christian denomination, and #2, the same people who passed the First Amendment showed clearly and unequivocally by their actions that a great many things which YOU think violate the First Amendment are in fact not violations at all.

I don’t know why you persist in thinking that you know more about what the First Amendment means than the people who wrote it and passed it.

Oh really? :dubious:

As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims),—and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

[Bricker]

@Guinastasia

Oh really? :dubious:

That’s a fair point to raise with respect to his point #1, but doesn’t seem to address his point #2.

[Really_Not_All_That_Bright]

#2 assumes that anyone should care, which is doubtful.

[Martin_Hyde]

I would think there’s a few things at play here.

Even if it violated the establishment clause, haven’t there been SCOTUS cases where the court basically said “Yeah, this really shouldn’t be allowed but we’ve done it so long we’re just going to call it ceremonial deism and call it a day.” I mean, to my interpretation there are things that I think would fail the lemon test a lot more clearly than having Christmas be a Federal holiday. The chaplain opening the legislature with prayer, “in god we trust”, ten commandments engraved in the walls of the Supreme Court itself etc.

With making Christmas a Federal holiday I would say the lemon test to me probably looks like:

1. Must have a secular legislative purpose. I think it does, even an atheist employer would probably make Christmas a holiday in most cases just out of a recognition of the realities of their workforce. If I own a business with 95% Christian employees, it just makes sense not to cause problems by trying to make people work on Christmas day. As a large employer, I’d think the Federal government could easily argue a similar case and it’s a totally secular, HR type problem, not a religious one.

2. Must not have the primary affect of advancing religion. I think this one is the most arguable. By actually naming it “Christmas” in statute I’d lean towards thinking it fails this test. But I imagine a remedy would just be the SCOTUS saying “you can’t call it Christmas in statute” and the legislature passing a law where the Federal holiday on Dec. 25th was changed in name to something unrelated to Christianity. But I even think with this violation of the lemon test it would fall under the umbrella of other religious things the SCOTUS has, while more eloquently than me, basically just said “we don’t care.”

3. Must not result in excessive government entanglement with religion. I do not know what defines excessive here. To me excessive implies there can be some entanglement (which in itself seems to violate the establishment clause, but I guess Lemon v. Kurtzman takes precedence over the plain reading) I wouldn’t consider the holiday to be an “excessive” entanglement but if I knew specifically what “excessive entanglement” has been elucidated as I might change my opinion on that.

So basically yeah, I do think Christmas doesn’t pass the lemon test but I can name at least four or five other things that don’t and the SCOTUS has shown they are basically willing to ignore the establishment clause as it suits them, so I’m not sure it’s one of the things worth really getting upset about.

[Really_Not_All_That_Bright]

@Martin_Hyde

I would think there’s a few things at play here.

Even if it violated the establishment clause, haven’t there been SCOTUS cases where the court basically said “Yeah, this really shouldn’t be allowed but we’ve done it so long we’re just going to call it ceremonial deism and call it a day.” I mean, to my interpretation there are things that I think would fail the lemon test a lot more clearly than having Christmas be a Federal holiday.

Pretty much this. The First Amendment does not require Congress to hold back the tide, and it’s not as though private employers are obligated to observe federal holidays anyway.

[Martin_Hyde]

@pseudotriton_ruber_ruber

What are we discussing here anyway? Seems to me there are several disparate conversations going on at once:

Yeah, I’m not sure either.

1. Everyone wants a day off work, and no one wants to lose December 25th as a day off. And I’ve heard it argued that even atheists want to get the same day off that religious people want so they can coordinate their vacation plans (or something like that). Personally, this makes no sense to me, in that when I get a day off work, I don’t much care what day it is or who else is off.

I’m self-employed now, but before when I was a single male atheist I much preferred “floating holidays” to statutory ones. I didn’t much care that 12/25 was a Christian holiday but I was more annoyed that statutory holidays often fall on weird days like Weds or Tuesday. With floating holidays I’d always take them to expand my weekend by a day or two and never in the middle of the week like that. I also probably wouldn’t take them at all in the winter months.

2. Christmas is not a religious holiday, it’s a secular holiday. This is stuff and nonsense, to my mind: BECAUSE many non-religious people have been compelled to take a day off work over the years, and have no use for religious practices, they have come to include various secular practices that overlap slightly with the religious practices (gift-giving, putting up trees indoors, drinking eggnog, etc.), but to my mind this is akin to arguing that drinking beer and farting on July 4th is a patriotic act because July 4th is a day to celebrate patriotism.

I’d agree Christmas is clearly religious and any secular practices derive from that. However there is a large degree of secular non-Christian celebration of Christmas. I know many immigrants from India or Southeast Asia who are not part of any Abrahamic religion who celebrate with a tree and lights and wrapped presents. So while I don’t think you can say Christmas isn’t religious it is celebrated by people unconnected to Christianity.

3. Having December 25th designated as a Federal holiday violates the First Amendment’s prohibition of a state endorsement of religion. This is the interesting one to me. Actually, it’s quite dull, since I believe that is true on the face of it, but it’s interesting to me that so many think that there is anything worth debating here, or even that it’s crystal clear but in the opposite way that I think it is.

This is the only real point of debate. To me, I don’t see how you can argue that making December 25th a Federal holiday violates the establishment clause.

1. I think SCOTUS would defend the ability of the Feds as employers to establish statutory holidays for their employees. Stuff like MLK Day and Thanksgiving would never be deemed outside the power of the Federal government.

2. I think SCOTUS would defend the ability of the Feds to make Dec. 25th a holiday just out of the HR reality that a huge percentage of their workforce “want” the day off. Employers are allowed to give things to their employees that a large portion of the workforce wants.

3. Every day of the year is a “holy day” for someone. If you look at the Catholic and Orthodox Christian liturgical calendars this is almost literally true without even looking at any other religion. I don’t think you can argue that the government is barred from making any day a Federal holiday that happens to fall on the same date as a religious holiday. As that would basically give religious groups the power to determine what days Congress could make holidays and what days they couldn’t. I don’t see a court ever saying that, nor do I think it violates the establishment clause.

4. I think calling the Federal holiday Christmas clearly violates the establishment clause, but like you I don’t see any major changes to this in our lifetimes. There are several areas of concern where I feel the SCOTUS ignores establishment clause violations simply because they are old, widespread, and minor. That doesn’t make it right, but with a large number of Christians on the bench it isn’t too surprising, either.

[Sarahfeena]

I like your post, Martin Hyde. Per your item #4, can we solve all this by calling it “Winter Break Day,” much like the schools have Winter Break and Spring now instead of Christmas Break and Easter Break? Everyone agreed? We’re all good? Cool.

[Really_Not_All_That_Bright]

Let’s make it “Boxing Day Eve” instead. History and secularism* in one neat package!

*Yeah, I know Boxing Day originated with the practice of breaking open church alms boxes, but if everything even remotely connected to religion is verboten we’d better ditch the Gregorian calendar entirely.

[pseudotriton_ruber_ruber]

@Martin_Hyde

4. I think calling the Federal holiday Christmas clearly violates the establishment clause, but like you I don’t see any major changes to this in our lifetimes. There are several areas of concern where I feel the SCOTUS ignores establishment clause violations simply because they are old, widespread, and minor. That doesn’t make it right, but with a large number of Christians on the bench it isn’t too surprising, either.

This is either exactly what I’ve been arguing, or exactly what I meant to be arguing.

[DrDeth]

@Martin_Hyde

4. I think calling the Federal holiday Christmas clearly violates the establishment clause, but like you I don’t see any major changes to this in our lifetimes. There are several areas of concern where I feel the SCOTUS ignores establishment clause violations simply because they are old, widespread, and minor. That doesn’t make it right, but with a large number of Christians on the bench it isn’t too surprising, either.

And, as has been pointed out, the Supreme Court sez you are totally wrong.

[Sarahfeena]

It’s kind of cracking me up that apparently the objection is all about calling the holiday “Christmas,” when the thread title references “Xmas.” If we all call it Xmas, are we OK to give everyone a day off for it?

[pseudotriton_ruber_ruber]

@DrDeth

And, as has been pointed out, the Supreme Court sez you are totally wrong.

And as has been reiterated here, I (and several others) say the Supreme Court is totally wrong. Look, if it were called “Bow Down Your Knees and Worship Christ’s Birth” Day, and the Supreme Court had ruled that it was ok according to the first amendment using the same fucked-in-the-ass logic, you’d still be defending it, right?

[Der_Trihs]

@Sarahfeena

It’s kind of cracking me up that apparently the objection is all about calling the holiday “Christmas,” when the thread title references “Xmas.” If we all call it Xmas, are we OK to give everyone a day off for it?

No; but giving people a xay off would be fine.

[Alan_Smithee]

But, prr, the statute doesn’t establish that December 25 be known as Christmas Day, it simply acknowledges the fact of such. Are you really saying that if they struck out the parenthetical “known as Christmas Day” from the law, we’d be cool?

And why haven’t you answered my argument that closing the government on the weekend is equally a 1st Amendment violation (or not)? Is it because Saturday and Sunday are named for pagan deities instead of Christian ones? Would you then be ok with an extra day off (say on Monday) for Easter, since that’s also named after a pagan deity?

[pseudotriton_ruber_ruber]

@Alan_Smithee

But, prr, the statute doesn’t establish that December 25 be known as Christmas Day, it simply acknowledges the fact of such. Are you really saying that if they struck out the parenthetical “known as Christmas Day” from the law, we’d be cool?

And why haven’t you answered my argument that closing the government on the weekend is equally a 1st Amendment violation (or not)? Is it because Saturday and Sunday are named for pagan deities instead of Christian ones? Would you then be ok with an extra day off (say on Monday) for Easter, since that’s also named after a pagan deity?

I guess they’d have to name it something. Can’t just get a day off because it’s the 25th of the month, right? How about “Dumb, Lazy Motherfucker Day”? I could support that.

If you want to rant about the days of the week being named for Norse deities, be my guest. I don’t feel the Norse gods-worshippers are flexing their oppressive muscles to foist a belief in the centrality of their religion on us, but you could talk me into maybe signing your petition.

After we eradicate the name of Jesus from a federal holiday, of course. One thing at a time. I have no problem with Easter–it’s not a federal holiday anywhere, as far as I know, and Christians have the right to believe in any dumb shit they like, the dumber the better, as far as I’m concerned.

[Justin_Bailey]

@pseudotriton_ruber_ruber

1. Everyone wants a day off work, and no one wants to lose December 25th as a day off. And I’ve heard it argued that even atheists want to get the same day off that religious people want so they can coordinate their vacation plans (or something like that). Personally, this makes no sense to me, in that when I get a day off work, I don’t much care what day it is or who else is off.

Do you honestly not have any friends or family? Do you despise gatherings of all kinds? If not, then why isn’t a holiday that the vast majority of the population celebrates with fun and gathering a great idea?

[pseudotriton_ruber_ruber]

@Justin_Bailey

Do you honestly not have any friends or family? Do you despise gatherings of all kinds? If not, then why isn’t a holiday that the vast majority of the population celebrates with fun and gathering a great idea?

It’s poisoned by religious drivel. You want to spread that toxic shit, it’s no skin off my ass but don’t ask me to collude with you in that and don’t ask me to be a citizen of any state that officially supports such offensive twaddle. I’m fine hanging out with my friends and family, partying and having fun, but I refuse to participate in silly religious rituals of any sort.

[SCAdian]

@Sarahfeena

It’s kind of cracking me up that apparently the objection is all about calling the holiday “Christmas,” when the thread title references “Xmas.”

Would you think it funny if people referred to the United States in a thread having a title that referenced “the US”?

[wonky]

This thread is really odd considering its parallels to gay marriage threads. In gay marriage threads, there are people who declare that “marriage” is religious! It’s primarily religious because most of the people who get married are religious! Because most people are religious. So therefore it’s not secular, it’s religious. And if you get married secularly, why, that doesn’t even matter or count because all that matters is what the religious people want and think.

Oh, to fix it, see, we can change the word, or change the institution. And screw over the secular people like me who like the institution and want to stay married and want more people to be able to get married, because it’s all about names for things and all about religion.

And in this thread, Christmas is all about religion! It’s primarily religious because most of the people who celebrate Christmas are religious! Because most people are religious. So therefore it’s not secular, it’s religious. And if you point to all of the non-religious trappings and traditions, that doesn’t count. And if you celebrate Christmas secularly, why, that doesn’t even matter or count because all that matters is what the religious people want and think.

Just like marriage, a winter solstice celebration predates Christianity. Just like marriage, those of us who have no religion might still celebrate Christmas. Just like marriage, the name represents something, and saying that the representation is only for the religious is impacting the lives of people who just want to celebrate something with their families and loved ones.

I’m an atheist. Marriage AND Christmas are just as much mine as they are anyone else’s.