Legal Commentary

Since I am spending the holidays here at Prawfs and am about to accede to my wife's insistence that I erect various symbols of the "Winter Solstice" (or at least the Christian and western celebration that occurs about that time) around our house and property. (Think of Clark Griswold),  I thought it meet and proper to acknowledge the beginning of the annual "Christmas Wars." This year's Fort Sumter seems to be the Washington state Capitol building. 

There is, of course, a triviality to all of this. It does not establish religion to place a Nativity scene in front of city hall anymore than the failure to do so plunges us into a Godless abyss. But these battles aren't about mangers and menorahs which is one of the reasons that the Supreme Court's approach to the matter based, as Justice Scalia puts it, in considerations more commonly associated with interior decorating than the judiciary" makes no one happy.

What brings this all to mind is less our December ritual of dueling displays and Holiday reprise of the old Miller lite commercial in which "less filling/great taste" becomes "Happy Holiday/Merry Christmas," than it is a recent decision of the European Court of Human Rights in Dogru v. France and Kervanci v. France upholding the French practice of barring Muslim girls from wearing Islamic head scarves in physical education classes over a claim that it violated the girls' freedom of thought, conscience and religion under Article of the European Convention on Human Rights.

What caught my attention is the court's emphasis on the public secularism upon which the French Republic has been based. As a consequence, the court observed, the "citizen must respect the public arena that is shared by all" and, at least in the public school context, believed that the state could exclude ostentatious and conspicuous religious displays that might create undue pressure and exclusion (although here of the students choosing to adopt the religious display.)

While depending on the particulars, the case might be decided similarly here, the frank embrace of secularism is not as readily reconciled with our tradition. While we certainly have had - and still have - judges and scholars who equate secularity with neutrality, there is also a strong counter tradition, supported, I think, by the postliberal understanding of the nature of religion, i.e., that it is shaped and sustained in communities that are permeable and influenced by the larger culture. It is not simply private and is vulnerable to outside influence. A naked public square is not silent and this is why "Happy Holidays" is not seen by all as a happy resolution.

Of course, most of the Christmas cases seem to turn on whether something is government speech as opposed to private speech in a setting in which attendance is compulsory. That may mandate a different outcome but, as the state has grown larger, the dialectic is the same. Does pluralism require the suppression of points of difference? In a truly pluralistic world, is that even possible?

More, I'm sure, to follow - both in Christmas Present and Christmas Future.