Travis Weber, Esq. is Director of the Center For Religious Liberty at Family Research Council. This article appeared in News-Democrat and Leader on December 18, 2014.
Around this time of the year, the “War on Christmas” and the “War on the War on Christmas” once again enter the public discourse, with each side claiming support from assorted statistics and anecdotes.
Though there are certainly some who inexcusably exaggerate threats to public religious expression and others who claim there is no hostility to Christianity, we must ask the obvious: If there is no hostility to public religious expression, what has prompted fears that Christmas is being stamped out?
Our legal system leaves a paper trail that can help us find an answer – from it we can observe how hostile actors have used that system to attack religious expression in the public square.
Looking back over this year, the law has been both good and bad in its treatment of public religious expression. Twice, the Supreme Court has affirmed that faith cannot be confined to Sunday morning worship, but extends to one’s business (Burwell v. Hobby Lobby) and to government settings (Town of Greece v. Galloway). On the other hand, small business owners who want to live quiet and peaceable lives are still not being left to do so, but instead are being fined and threatened with jail time for not approving of marriages between two people of the same sex (for example: Liberty Ridge Farm, Arlene’s Flowers, Masterpiece Cakeshop, and Hands on Originals).
Meanwhile, hostile atheist and humanist activist groups continue to try to scrub every bit of religious expression from the public square – most recently by attacking the voluntary recital of the Pledge of Allegiance in public schools as unconstitutional. After years of failed challenges in federal courts, the activist groups have turned their attention to state courts. Just last month, around the time the initial rounds were being fired in the “War on Christmas,” oral arguments were heard in a case brought by the American Humanist Association in a New Jersey state court alleging that the public school recital (which is already optional for students) of the Pledge of Allegiance violates the Equal Protection Clause of the New Jersey Constitution. The group’s reasoning? Because the Pledge makes mention of “God,” those who do not believe in God are somehow suffering unequal treatment under the law.
Those wary of a war on the public expression of faith – including the “War on Christmas” – can be excused for their concern.
In addition, despite congressional efforts to protect service-members’ expressions of faith, stories have continued to emerge over the past year about religious expression being stifled in our military. Only several weeks ago, on Thanksgiving Day, an Army chaplain was called into his commander’s office and punished for sharing how his Christian faith has been a source of strength for him. Military policy does not prohibit religious expression. In fact, it protects the right to share one’s faith. If an Army chaplain – whose very job it is to care for service-members’ religious needs – cannot share that, exactly what wisdom is he supposed to be imparting to his troops? In the face of such attacks, how are the fears of the many Americans concerned about hostility to religion to be alleviated?
Not easily. While there have been a few important wins at our nation’s highest court this year, many negative trends in the law – which are reflected in our culture – have multiplied at other levels. And these lawsuits and other incidents represent only some of the more recent attempts to suppress public religious expression using our legal system. For quite some time, those hostile to religion have filed lawsuits in courts around the country attacking public religious expression – usually alleging violations of the Establishment Clause.
For years, the Establishment Clause has been interpreted – by legal activists and judges alike – in twisted ways requiring that mention of God and other religious expression be removed from the public square. This interpretation would seem bizarre to Supreme Court Justice Joseph Story, who once observed that “at the time of the adoption of the constitution … the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state.” The modern anti-religious activists’ view is that the slightest mention or association with anything religious amounts to a constitutional violation. But the words “under God” do not “establish” anything; they are simply a common recognition by diverse American citizens, who, despite differences in religious views and opinions, recognize their dignity and worth ultimately come from the authority of God – not merely the pronouncements of the State.
The recent legal opposition to religious expression has been driven as much as anything else by an inaccurate understanding of the term “offense” – that being offended entitles one to a legal remedy. Thankfully, the Supreme Court rejected such flawed thinking earlier this year in Town of Greece v. Galloway when it stated that “offense … does not equate to coercion.”
But many do not like the Court’s rejection of this idea. They are offended by religion and want to be able to sue over it. Some of these same people and groups are offended by mention of Christmas themes because those are religious themes. Thankfully, the Supreme Court has reminded them that it is okay to be offended – it is part of living in a free country, and is something we all have to get used to. Until they understand this, many will likely continue to try to suppress religious themes, and will continue to try to use the courts to do so.
In the meantime, Americans can be excused for being sensitive about a war being waged on Christmas.