Sunday, December 23, 2007

Christmas peace revisited

In response to my column in the Journal Sentinel in the Christmas wars, I got a few comments - here and by e-mail - and I wanted to acknowledge those and comment on Dan Barker's opposing piece.

A few commenters thought it odd that a law professor would say something as simple as "get a grip." Of course, I said it after alluding to the ways in which we could have a lengthy and complicated discussion about the place of religion in public life in some context other than an 800 word op-ed. I also said I would not discuss what the law is (to the extent anyone can say) because that's not what my assignment was.

But, believe it or not, sometimes a little bit of common sense goes a long way in the law. If it seems odd to you that Merry Christmas on the City Hall marquis is regarded as an establishment of religion, it may just be because it is odd.

A few commenters raised the historical argument. Don't we have a "Godless Constitution?' The answer is "yes" and "no." It is quite clear that the framers thought that compulsion in matters of religion was both wrong and impossible. I think is also clear that they contemplated a separation of church and state. This is why I don't agree that America is a "Christian Nation."

But that doesn't mean that they intended to construct the type of formalistic wall that Dan Barker thinks ought to exist. In Dan's world, even the slightest whiff of religion in association with the government ought to give us a case of the vapors. However much Dan thinks this is hardwired into our Constitution, we actually got through most of our history without it.

In the past, some commenters have criticized people like David Barton who argue the "Christian Nation" hypothesis. I agree that this is usually "law office history," picking and choosing what supports a desired conclusion. But those who argue for the absolute wall do the same thing.

Such a concept would, moreover, be anachronistic in that it does not rest well with the modern pervasiveness of government. The commenters see a world in which areas of life that are too closely associated with government or public life are to be religion free while people pursue their individual faiths on their own and out of sight.

But, when government gets involved in much of our lives - teaching our children, freeing us from our addictions, pulling us from our poverty, instructing us on public morals - a religion free public square is not a neutral one. If government is going to tell us how to live (a prospect that the founders probably did not have in mind), then it can hardly avoid involving itself in matters where religion is concerned.

As I suggested in the column, this has an impact on religion because most scholars now believe that religion is formed in community and affected by what goes on around it. If you create an environment where religion is to be kept in the dark, you do one of two things. You either eviscerate it or you make it a counterculture that exists precariously within the larger culture.

For these reasons I have concluded that a less ambitious establishment clause is in order. We can't be neutral. We can't be absolutely even handed. We can be respectful and defend freedom of conscience. But driving Christmas from the public square does not serve either.

This doesn't mean that we ought to put the government into the religion business. That would be a horrible mistake. But it is where "get a grip" comes in. Creches and Christmas Trees are not the first step to Inquisition.

So I think its ok for merchants and even, to a limited degree, the government to acknowledge the religious nature of the holiday. Some ask how we are to decide which holidays are recognized? That's a fair question but, at the level of trees, creches and celebratory messages, I don't think it ought to be constitutionalized. My guess is that we will see acknowledgement of the Jewish High Holy Days and Ramadan. We won't see the celebration of L.Ron Hubbard's birthday.

Some commenters raise examples of Christian intolerance, including a much circulated story about how some kids claiming to be Catholic abused some Jewish kids on a subway.

Do I think that's ok ? Given that my sweet little grandson is about to enroll in Jewish Day School, I think it's fairly obvious that I don't. I might add that, assuming the story's accuracy, if Christian kids are abusing Jewish kids on the subway, the former are in need of remedial Sunday School.

But I don't think acknowledging Christmas will let loose packs of Christians wilding in the streets. If anything, it's telling people that they ought to shut up that breeds resentment.

One commenter leaves me with the lyrics (all of them) to Jackson Browne's "Rebel Jesus" in which he channels John Dominic Crossan and a smug teenage boy. I know the song. It's on a Chieftan's Christmas CD that we have. I heard it just the other day.

My first reaction is always to wonder how I missed all the "heathen" and "pagan" eleemosynary institutions that must populate Jackson's world. Where is the Bertrand Russell Center for Cardiac Care and the Wiccan Magic Circle and Heart Hospital? Because we know the Christians couldn't have started such places.*

But it's Christmas, so if Jackson means (and the commenter intended) to remind Christians that their faith means something the year around, I heartily agree.

Finally, both Barker and some commenters let the guard slip. These creche scenes are offensive because they tell us that we are not perfect in and of ourselves. We are in need of redemption and subject to a higher standards than our own preferences.
The source of that redemption is not in power or genius, but in love; a revelation that mocks our pretensions and has been a scandal for two thousand years.

So, for those who keep it, Merry Christmas.

* At the risk of belaboring what should be obvious, I know that people of other belief systems do charitable works. I'm commenting on Browne's "Gee, Mom & Dad and their lousy society are no good hypocrites" tone.


Anonymous said...

"Do I think that's ok ? . . . I might add that, assuming the story's accuracy, if Christian kids are abusing Jewish kids on the subway, the former are in need of remedial Sunday School.

But I don't think acknowledging Christmas will let loose packs of Christians wilding in the streets. If anything, it's telling people that they ought to shut up that breeds resentment."

No, Rick. It's the (unfortunately growing) intolerant elements of the Christian right who are trying to push their single version of truth into the public square that is breeding this. The "Merry Christmas" thing isn't what they really care about. That's a red herring, an effort to push the door open wider to the more theocratic state they seek.

And when they try to use the gov't to do that - they're wrong. That's why separation of church and state matters.

John Foust said...

Such logic: Government should be allowed to meddle in religion because those darn liberals got their way with public education, health care and poverty reduction. Can't you imagine a world where government could still do those other things, yet remain out of the sphere of highly charged and personal arena of religion?

Our Constitution tells us to keep government out of religion in respect for everyone's freedom of belief. Government advocacy of particular expressions of particular religions is abuse of its power. You claim religion is "kept in the dark" if government isn't allowed to play favorites? How exactly does an absence of government assistance "eviscerate" religion or cause it to become a "counter-culture"? You think government's neutral stance has somehow hampered the presence of religion here? What facts do you have to show that? Every survey I've seen shows the opposite, that this country is among the most religious in the world. "Scholars now believe that religion is formed in community"? Of course churches reinforce a sense of community among their members. You needed an unnamed scholar to tell you that?

As Barker wisely and clearly put it, "Private speech is protected; government speech is limited. Individuals and private organizations have maximum freedom. Governments possess curtailed freedom in order to allow individual freedom." You're conflating the "public square," government action and public forums. There's a big difference between the government erecting a religious display and the government allowing a public space to be used by all comers. Of course, no one is suggesting that there's any limit on private displays.

Who picks? Your rule of thumb is paper-thin. We can't be neutral, we can't even try? A whiff? Yes, a simple smell test would be a good start and would prevent almost all controversy. Instead, we find government officials eager to promote their personal beliefs with tax dollars. Are all Christians the same? Why do you have ten or a hundred Christian churches in town, and not just one? Does that Cross look more Lutheran to you and not Catholic? Is this Baby Jesus too Mexican? Is a blinking Rudolph a bit out of place next to Jesus and Mary? Making these decisions necessarily puts government in the religion business. Put yourself in the shoes of the Mayor who tells a roomful of Scientologists that they don't have a "real" religion and so the City Hall will continue to fund the generic Christian display. Look at the antics in Green Bay and multiply them a thousandfold as elected yahoos feel their position grants them the power to use public funds for their favorite religious displays, barring the others.

Barker is an ex-minister. He knows the message you want government to promote.

Anonymous said...

Hey Anon and J.F.

Merry Christmas and may God's peace be with you.

Merry Christmas Rick. Keep up the good work.

Anonymous said...

My interpretation of Jackson Browne's "Rebel Jesus" is, simply: far too many of today's spokespersons for the religious "right" (or moral majority, or the Christian Nation, or conservative Republicans, or whatever encompassing term best describes them) model themselves after the Pharisees of the Bible rather than their hero, Jesus. The result is a corruption of the philosophy espoused by Jesus. WWJD?

Rick Esenberg said...

Government should be allowed to meddle in religion because those darn liberals got their way with public education, health care and poverty reduction.

That would be poor logic but it's not my argument. The point that I did make was that when government enters these arenas it also enters the "highly charged" world of religion.

You see a world where a secular baseline is neutral. It's not. It might be if the government did only things that never or rarely implicate religious questions. But that is not our world and is not going to be, so a religion-free public square looks neutral only if you are not religious or, maybe, if you have a view of religion as innate and private and not much affecting these things that the government has more recently gotten into.

My answer to this, which I developed in a law review article, is to abandon complete neutrality in all matters as a goal. It can't be done.

This doesn't mean that government can do anything it wants in the religious realm, but it does mean defining establishment in a less aggressive way.

As for the religious nature of the United States, we have always been more religious than our western European counterparts. de Toqueville noticed it in the first half of the 19th century. We are less religious than we used to be. Whether that is a good or bad thing is something that people will differ on, but it's not a constitutional mandate and ought not to be facilitated by goverment crowding religion out of public life.

Anonymous said...

No 11:06 anon, Rick is more right. If it were the "intolerant Christian right" pushing their views, the constant fight would not be about saving one and two hundred year old traditions of Christmas trees and nativity scenes in a public square. It would be about spending lots of money on new religious symbols in public squares.

The sweeping trend has not been new religious displays, it has been saving or restoring old displays. The religious right is not a planned conspiracy to make the USA a theocracy unless you consider its first two hundred years a theocracy. It has been a REACTION to a combination of specifically non-christian teachings in schools and the systematic outlawing of majorical community choice icons from once honored pasts.

I am not considered a traditionalist by people who know me, but I have no problem with tradition either. I would be against spending a million dollars on a new nativity scene in my community square. I am not against $10,000 to put up, power, and take down an existing scene.

Where are you slavering activists when it comes to important things? I make a moderate 40 grand per year in a small company. I received no raise because it was a tough year. I took home only 26,000 this year and my property taxes went up 20%!!! What the (insert non-christian term here)???

So I emphasize, Mr. Barker, stop wasting our money by suing Governments and GET A GRIP.

Anonymous said...

It seems to me that these arguments seem to be about proving that someone is right and someone is wrong. But in this case, I think both "sides" are both right and wrong, but the "Christian" side is more wrong. Not because of separation of church and state, but because of substituting the trappings of Christmas and even the celebration of Christ's birth for the actual meaning of Christ's life.

I agree with Rick that some people need to "get a grip;" that some things are not worth fighting about and they aren't necessarily indicative of a slippery slope. But I also agree with "Recess Supervisor" (sorry, I don't know how to do links and I can't seem to figure out HTML tags either):

"Those who insist on temporarily slapping nativity scenes and crosses on public properties in December aren't celebrating their faith - they're looking for a political fight. They are using their faith as a political weapon. And by opening up public spaces to holiday displays that range from the serious to the absurd, they are cheapening the very beliefs that so many people hold close to their hearts."

Christianity is not in any danger in this country from the government or from the FFRF. It is in danger from Christians who believe that Christmas is at the mall, or at the City Hall, in their own front yards, or even in church--instead of in their hearts. It is in danger from those who seem to care more about what you call a green tree with decorations than about Christmas itself. The various "demonstrations" of Christmas (including lights and trees and Santas, but also including creches in public, in church, and at home) do nothing to celebrate the birth of Jesus if they do not include Christ-like actions. And Jesus did not approve of public displays of either religiosity or charity. In fact, my own personal take on WWJD is that He might throw the whole kit and caboodle of "christmas" right out with the money changers and tell everybody (and especially his own followers) to get back about doing His business.

John Foust said...

Is your law review article online anywhere? I'd love to see it.

The Gallup polls for the last sixty years show a steady 4 in 10 who claim to attend church weekly. In the golden late 1950s, the peak was 49%. Or maybe some
just like to fit in.

Rick Esenberg said...

It's at 12 Roger Williams L.Rev. 1 and available on Westlaw or Lexis, but I haven't gotten around to putting it on Marquette's SSRN page. That's on this month's list.

John Foust said...

Don't leave us hanging. So can Esenberg "conceive of no test that might tell us whether government has strayed from the narrow path to which it must keep"? Or does your paper tell us how much is too much?

Anonymous said...

I can't believe how narrow minded people are that want to exclude Christians from public property.

Do we forget that Christians own this goverment as well as others in this nation? It is simply an expression of free speech that has been accepted in this country since it's founding.

The constitution in no way makes this an aethiest nation but gives us a goverment that is to serve as a battle ground to decide these issues. Where are our elected representatives in all of this? It ought not be decided by judges.

Anonymous said...

Anon 806 pm said -
"Do we forget that Christians own this goverment as well as others in this nation?"

Yikes. This is scarier than I thought. Christians OWN this government???????

what does that bode for us non-Christians? Should I be picking my family up and moving out of this country? And lord knows we have experience with that, as my anscestors fled other countries to escape their Christian (and violently anti-semitic) "owners."

I'm not imputing Anon's thoughts to you Rick - though I hope you'd respond to them. And denounce them. And perhaps be a little more sensitive in understanding why some of us non-Christians get very uncomfortable about the idea of gov't promoting the Christian religion.

Anonymous said...

anon 1:00 PM -

Please share with us what it is that has made you so fearful of Christianity.

Anonymous said...

Anon 10:04

I do hope you're kidding. otherwise your knowledge of history is frighteningly lacking. I am not saying this level of violence has existed in the US - but that, I believe, is because of the separation of church and state. Which my ancestors fled other countries to find in the U.S.

so just for ONE example that directly affected my ancestors - and note both the involvement of priests and the refusal of gov't authorities (police) to intervene.
"The New York Times described the First Kishinev pogrom of Easter, 1903:
"The anti-Jewish riots in Kishinev, Bessarabia (modern Moldova), are worse than the censor will permit to publish. There was a well laid-out plan for the general massacre of Jews on the day following the Orthodox Easter. The mob was led by priests, and the general cry, "Kill the Jews," was taken up all over the city. The Jews were taken wholly unaware and were slaughtered like sheep. The dead number 120 [Note: the actual number of dead was 47-48[13]] and the injured about 500. The scenes of horror attending this massacre are beyond description. Babies were literally torn to pieces by the frenzied and bloodthirsty mob. The local police made no attempt to check the reign of terror. At sunset the streets were piled with corpses and wounded. Those who could make their escape fled in terror, and the city is now practically deserted of Jews. . . .

Many pogroms accompanied the Revolution of 1917 and the ensuing Russian Civil War, an estimated 70,000 to 250,000 civilian Jews were killed in the atrocities throughout the former Russian Empire; the number of Jewish orphans exceeded 300,000."

Anonymous said...

Anon 10:57. You think it was horrifying that some people think that Christians 'own' government as much as everybody else, (Yes, if you read the text, though poorly worded by Anon 8:06, I believe they meant that Americans 'own' their Gov't and many Americans are Christians) yet you comparing American Christians to the Russian pogrom mobs is perfectly reasonable and common sense? Please do flee the country you nit.

Anonymous said...

Anon 10:57 -

There is nothing in Christian scripture and Christ teachings that advocates his followers to do violence to anyone. Judgment and revenge are taken out of the hands of believers and are solely in the hands of the Lord.

You also leave out of your reasoning that the greatest atrocities committed have been by athiest, over 100 million of there own people.

I think you should read a new book published by a journalist from Chicago called "The Case for Christ". He was an aethiest that set out to prove Christianity wrong.

Anonymous said...

Tuerqas: the comment about the pogroms was in response to a question as to why some people may be distrustful of Christianity. There is a history of religious violence by Christians (not only Christians, of course, but let's not pretend Christians - or persons who considered themselves such - never committed violence in the name of their religion, either).

And there's an even larger history of intolerance and/or self-righteousness and/or proselytization (again, not only by Christians, but it's ludicrous to pretend Christians don't participate).

Anon: I never said I was an atheist. Just that I'm not a Christian. Why is that so difficult for you to accept? Why do you need me to believe in Jesus? Isn't it enough that you do?

(Similarly - Thank you very much Ann Coulter, but I feel no need to be "perfected" by Jesus).

And, again, the point is, these are the reasons church and state should be separate. Would all of you arguing for government-sponsored religion feel that way if the government sponsored Islam? Hinduism? Wiccanism? Didn't perhaps some of your Christian ancestors flee religious intolerance or persecution in Europe? OK, then, let's not impose your version of Christianity on those of us who believe (or don't believe) differently.

Anonymous said...

Anon 8:05 -

I think you need anger management because it appears that you wish to force your beliefs down our throats...

Anonymous said...

Anon 8:05

PS - The goverment does allow just about everything but Christianity...