Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, December 11, 2010

Poking at the Establishment Clause?

Here's a column by Gail Collins making fun of Tulsa's decision to allow a Christmas parade to proceed notwithstanding the absence of the word "Christmas."  Or making fun of the attendant protest.  Or making fun of Senator Inhofe.  She's definitely making fun of something.  "I know you've been worred," winks Collins: "We live in a time of so many terrifying, insurmountable problems. It’s comforting to return to arguing about whether the nation’s moral fiber is endangered if Tulsa downplays the religious aspects of a parade full of Santa Clauses that is currently sponsored by a popular downtown pub."  Difficult to cut through the confusing combination of earnestness and mockery to understand exactly what Collins means to criticize.

Be that as it may, the column had me wondering what Collins would have to say about Establishment Clause cases dealing with government sponsored religious symbols, texts, and displays.  Would she find the fights in Lynch, Stone, County of Allegheny, Pinette, Van Orden, Buono (to the extent people fought the EC fight), and the rest similarly ridiculous (or "comforting")?  Does she think that the "under God" battles now, or the issue of legislative prayers, or even what I predict will be the future question about the word "God" on the coinage -- are all of these and so many others just as mock-worthy?  After all, these disputes, no less than the one in Oklahoma, involve conflicts over what the government ought to be permitted to say about powerful and culturally important symbols and texts.  I'll admit that I, too, sometimes find them not quite as substantial as Collins's undescribably "terrifying, insurmountable problems," but I hope they are not regarded as objects of ridicule.  At least, I don't regard them that way.



DeGirolami, Marc | Permalink

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I think you may not be clear on the issues (or rather, nonissues) involved in this case and why Gail Collins is amused by it. As I understand it, the traditional organizers of the parade last year (a local utility company) decided to rename the parade "The Holiday Parade of Lights" instead of "The Christmas Parade of Lights" to make it more inclusive. This year, a new sponsor, a local pub, decided to keep "Holiday" in the name instead of "Christmas." The City Council was being urged by offended Christians to deny the parade permit because the word "Christmas" had been dropped. The idea that the government should use its power to deny "holiday-season speech" because it does not explicitly mention Christmas is ludicrous. There would have been an Establishment Clause case if the City Council had refused the parade permit, which is what "pro-Christmas" Christians were urging. Otherwise there is no Establishment Clause case here at all. This is not a government-sponsored parade from which the word "Christmas" was removed owing to concerns about government sponsorship of religion. It is a privately sponsored parade whose organizers have a perfect right to call it what they want without pressure or discrimination by the government if they don't want to use "Christmas" in the title. And the parade sponsors have made it clear that Christmas-themed content (floats, music, etc.) is not banned from the parade.

If Christians are miffed about the title change, they can boycott the parade, or boycott the businesses that sponsor the parade, or organize their own "Keep Christ in Christmas" parade, but to urge the City Council not to grant a permit to prevent holiday parade from taking place because it doesn't mention Christmas is just nutty.

Posted by: David Nickol | Dec 11, 2010 2:54:32 PM

David, thanks, but I don't think I was unclear about the issues. I understand that there is no Establishment Clause case here and think it would be foolish to bring one (and no one is talking about bringing an EC claim).

What I was talking about is Collins's mockery with respect to the importance of these kinds of issues -- issues which implicate how and in what manner the government treats religious symbols, what it is perceived to be saying. It may well have been the case that the municipality decided to do what it did with any eye to legal difficulties. If so, I think that while you are quite right to say that there is no EC case now, given the state of EC doctrine, there well may have been such a problem had the city labeled its official holiday parade "the Christmas Parade" or some such thing.

If that had happened, and a suit had been filed to enjoin the parade, would that have presented a legitimate EC challenge? Again, hard to say, given the current state of the law. But reasonable minds can differ and reasonable minds can feel strongly in both directions. They don't deserve Collins's thick mockery.

Posted by: Marc DeGirolami | Dec 11, 2010 4:06:47 PM


You say: " . . . there well may have been such a problem had the city labeled its official holiday parade "the Christmas Parade" or some such thing."

What I am saying is that this parade is NOT Tulsa's "official holiday parade." Here is an excerpt from an editorial in a Tulsa paper:

And, there is this: No public money was used to finance this parade. It does not belong to the city of Tulsa, other than in hearts of its children, old and young. Nor does the City Council acting on the permit violate the U.S. Constitution's provision for freedom of religion. The council was approving an application for a parade not voting on the name, although it seemed like it at the time.

If a group of churches or individuals want to hold a parade next year that Inhofe can ride his horse in and call it the Christmas Parade, they are welcome to do so. They can raise the money or find the sponsors. Then, they can petition the council for a permit.

In the case Collins is (quite correctly) mocking, it is not the anti-Christians trying to keep government from engaging in religious speech. It is the Christians trying to get to government to compel the organizers of a privately sponsored parade to engage in religious speech or at least punish them for not doing so.

The American Family Association's list of which companies are "for" and "against" Christmas has nothing to do with the Establishment Clause, nor does a Fort Worth bus boycott over advertising appearing in the busses, nor does the billboard war she speaks of. The only official government action I see mentioned in the column is the Portland, Oregon, tree-lighting ceremony. And it seems to me that if government officials freely choose to say "tree lighting" rather than "Christmas-tree lighting" so as to be more inclusive, it is not an Establishment Clause issue. If someone tries to force the government not to use the word "Christmas," that is another matter.

I grant that there is a thorny issue of government being challenged to avoid anything that smacks of religious speech, but I simply don't think it came up in Gail Collins's column. As I said, this was a case of Christians attempting to get the government to punish NON-religious speech by denying a parade permit to a private group that chose not to call their parade a Christmas parade.

Posted by: David Nickol | Dec 11, 2010 7:41:39 PM

David, I'm not sure why you think I am disagreeing with you about whether this incident raises an Establishment Clause issue. I don't think it does, as I said earlier. Really. I promise. I don't think it does. I'll go further and agree with you that if the city had denied the permit, it would have run into establishment problems, and for the reasons that you raise. I agree that the city was right to grant the permit. I also agree that the people who sought the denial of the permit were misguided about what the law permits. So there's lots that I agree with!

But as I see it, that's all largely beside the point of my post. Establishment Clause doctrine, in this area, now depends largely on highly malleable notions of exclusion and outsider status in assessing what the government can and can't do. My own view is that if the endorsement test is to survive in this form (and I know that there are folks who would like it to die), it will depend on people not treating each others' views on these sorts of questions as laughable or outrageous or to be mocked.

It may well be that the Tulsa case is not the right one to make this sort of point; your information about it is helpful, and much more than what I got from the Collins column. But I still believe (and this is where, perhaps, we differ) that Collins's op-ed exhibits a regrettable attitude toward the kinds of concerns that are implicated in this corner of Establishment Clause law (albeit perhaps not in the Tulsa case, though I wonder about that too). It's a point of view that belittles and laughs at the ways that many people react to challenges to their traditions and customs. Are these the most important questions the country faces. Of course not, and to that extent I can even agree with Collins's earnest talk about other difficult "problems," whether or not they are "terrifying" or "insurmountable"). But in my view, attitudes like Collins's will make it very difficult for many people to accept the endorsement test or anything like it.

Posted by: Marc DeGirolami | Dec 12, 2010 12:17:28 AM


It is very quiet here today!

I see Gail Collins mocking the "Christmas Wars" --whether or not private individuals, department stores, Amazon.com, Barnes & Noble, and so on choose to use the word "Christmas" or not. It is a far cry from serious cases involving the the government and the Establishment Clause.

One the one hand, Christians are always decrying the commercialization of Christmas. On the other, they are now upset because Old Navy and Starbucks "marginalize" Christmas, and Office Depot, Radio Shack, and Victoria's Secret are "against" Christmas. Exactly why it is important for Victoria's Secret ("Shop Sexy Bras, Panties & Sleepwear Clothing, Swimwear, Shoes & Beauty") to mention Christmas in its advertising I simply cannot imagine.

Posted by: David Nickol | Dec 13, 2010 4:21:28 PM

David, I agree that she is mocking the "Christmas Wars," and she specifically includes within that mockery the public's reaction to a municipality "downplaying" the religious content of a parade over which the municipality exercises some degree of control (though as you point out, the parade is not technically sponsored by the municipality). I disagree that this is the equivalent of Victoria's Secret putting out an ad campaign that includes the word Christmas.

At all events, I think the positions have been adequately fleshed out at this point, but am happy to grant you the last word.

Posted by: Marc DeGirolami | Dec 13, 2010 4:47:29 PM