Members Only | December 17, 2021 | Reading Time: 4 minutes
If ‘secularists’ are waging war on Christmas, where does that leave the Supreme Court? It said Christmas trees are secular
They actually serve Christian hegemony in America.
Every year around this time we get to argue about the religious significance of Christmas symbols only to be told they’re really secular celebrations of winter holidays. Some places choose to decorate celebrating Christmas, Hanukkah and Kwanza while others pretend Christmas trees aren’t really Christian. Also if you make an issue of the obviously Christian decorations you’re treated as a killjoy grinch.
As a Jewish woman whose mother loves putting a Christmas tree up, I would really like to say none of this matters and just enjoy the holidays. But unfortunately, I have to be that little grinch and point out that the ubiquity of Christmas decorations, and the claim they’re really just secular, is a pretty big cause for concern. Honestly, it should violate the Establishment Clause of the Constitution but, since we live in a Christian country, the Supreme Court has convinced themselves Christmas trees are totally secular and for everyone.
The Christmas tree, nativity scene, and even Santa have clear cultural, if not religious, connections to Christmas, which is a religious holiday. Placing a menorah next to a Christmas tree won’t change that.
There are a few reasons this discussion is particularly at the forefront of conversation this year. For one thing, Hanukkah was early this year (it’s already over) so by the time many people put out inclusive holiday decorations with a menorah, it actually made no sense to have one.
Far from including everyone, these demonstrations usually just serve to show Jews that we are treated as alternative Christians and that the dominant society doesn’t bother to actually learn about our traditions.
Then there was the bizarre Fox reaction to an act of vandalism on their Christmas tree. Craig Tamanaha set fire to the Fox Christmas tree and has been charged with arson, criminal mischief and reckless endangerment. While there’s little evidence of motive, many at Fox are calling for hate crime charges and claiming that this attack of arson was an attack on Christianity (so I guess it’s not a secular symbol?).
Oddly enough, another Fox host claimed the opposite when she said, “It’s a tree that unites us, that brings us together. It is about the Christmas spirit, it is about the holiday season, it is about Jesus, it is about Hanukkah.” Whatever you think Christmas trees symbolize, it’s hard to understand their connection to Hanukkah. Sure, there are secular winter solstice celebrations that include decorating a tree, and historically we have a lot dating back to Saturnalia. And you can certainly enjoy putting up a Christmas tree if you’re an atheist, or my Jewish mother. But we all need to acknowledge that the ubiquity of Christmas symbols in America ultimately serves Christian hegemony.
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Last week, a woman in California sued a local public school when they refused to allow her to put a menorah up as part of their annual tree lighting ceremony (they told her she could put a menorah ornament on the Christmas tree, which is what?). Their argument was that a menorah was a clear religious symbol while a decorated lit tree in the middle of winter with ornaments was not. A federal district court sided with the school by citing precedent from the Supreme Court.
You might be wondering why legal precedent supports putting up Christmas trees and only Christmas trees in public schools. And the answer is that the Supreme Court has ruled Christmas trees don’t violate the Establishment Clause … because they’re secular.
The Establishment Clause refers to the first clause of the First Amendment which reads: “Congress shall make no law respecting an establishment of religion.” For the first half of American history, that only applied to the federal government. There were many state-level laws that respected only Christianity or even only Protestantism. In the 19th century, states moved to disestablish state religion and in the 1940s the Supreme Court interpreted the Establishment Clause to apply to the states through the Fourteenth Amendment.
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In 1971, the Supreme Court developed the “Lemon Test” to determine if a practice violates the Establishment Clause in Lemon v. Kurtzman. The court struck down a law that allowed reimbursement for teachers at Catholic schools. For a statute to be constitutional under the Establishment Clause, the statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion and the statute must not foster an excessive entanglement with religion.
There are two cases in the 1980s that support public Christmas displays as long as they’re not overly religious. These cases have ruled that Santa, a nativity scene and a decorated Christmas tree are secular … somehow (the display also had a Season’s Greetings banner).
In Lynch v. Donnelly in 1984, the Supreme Court held that a seasonal holiday display, including Santa’s house, a Christmas tree and a nativity scene, did not advocate a specific religious purpose but instead had “legitimate secular purposes.” It had legitimate secular purposes, the court said, because Christmas was a recognized holiday by the government and had long been important in “Western Culture.”
You might be wondering why legal precedent supports putting up Christmas trees and only Christmas trees in public schools. And the answer is that the Supreme Court has ruled Christmas trees don’t violate the Establishment Clause.
In a more complicated, and kind of confusing decision, five years later, County of Allegheny v. ACLU, the Supreme Court ruled that an explicitly Christian nativity scene was unconstitutional, distinguished from the nativity scene in Lynch because there was nothing that wasn’t religious in the display, but that a separate display including a Christmas tree as well as a menorah was constitutional.
Therefore, while the court has acknowledged the display of a menorah as constitutional, it’s unlikely they would force the school to include one when Christmas trees alone are also considered constitutional.
As I previously said, plenty of atheists put up Christmas trees and not all Christians around the world celebrate Christmas by putting up a tree. But in the United States a Christmas tree, a nativity scene, and honestly even Santa all have clear cultural, if not religious, connections to Christmas, which is a religious holiday. Cultural Christian hegemony is still an issue even without religious enforcement.
Additionally placing a menorah next to a Christmas tree isn’t enough to change that. There are many religions outside Christianity and Judaism that deserve to be respected. Plus, as I said, if the menorah is an afterthought without any connection to actual Jewish practice, it’s not actually being inclusive. Ultimately, recasting Christian cultural practices as secular only serve to support America as a Christian nation and alienate those who don’t belong to the tradition.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.
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