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Guest MINDSETTER™ Ian Prior: Government Intervention in Cultural Traditions is Dangerous

Tuesday, December 04, 2012

 

As December is upon us, it is once again time for those time-honored holiday traditions that add vibrancy to a season that remains one of cheer, goodwill, and togetherness. Decorating the Christmas tree, lighting the Menorah, watching favorite holiday movies, and listening to far too many renditions of classic Christmas songs are, for many, what makes the holiday season something to look forward to each year.

Of course, here in Rhode Island we have embraced a new tradition for the holiday season. Every year we allow the rest of the country to tune in as our Governor gives tortured reason upon tortured reason for why we call our State House Christmas Tree a “Holiday Tree.” Last year it began when Governor Chafee stood by his proclamation that the tree in the State House rotunda would be called a “Holiday Tree.” This year, rather than quietly repeating last year’s process, the Governor took the controversy one step further – he cancels the tree lighting ceremony, then changes his mind and has the ceremony in the middle of the day on short notice. The Governor was apparently upset that the ceremony would turn “disrespectful” so he decided to do a quick under-the-radar lighting. But then the plot thickened when the Governor decided to go on the O’Reilly Factor and explain his rationale. At this point, it became extremely clear that the Governor has no legitimate explanation for his stubborn and pointless crusade.

The Failed Constitutional Explanation

During his interview with O’Reilly, Governor Chafee attempted to analogize the “Holiday Tree” fiasco to the fallout from the Supreme Court’s ruling in Engel v. Vitale that held unconstitutional a New York public school’s requirement that students recite a prayer at the beginning of each school day. It is unclear if the Governor was trying to make a broader point or was actually making a statement of Constitutional Law to justify his stance. If the latter, he was woefully mistaken. Having a government compose a prayer and require that it be recited at school, as was the case in Engel, undoubtedly runs afoul of the First Amendment’s Establishment Clause.

A Christmas tree, however, is certainly not akin to a mandated prayer, nor is it any more of a religious object than an Easter egg. This is not merely opinion. This is law. The Supreme Court has routinely held that a Christmas tree is a secular symbol; in fact, it inferred as such in Lynch v. Donnelly, a Supreme Court case involving a holiday display right here in Pawtucket, Rhode Island. In that case, the Court found that a crèche scene did not violate the Establishment Clause because, among other things, it was part of a larger secular display that included a Christmas tree and a Santa Clause house.

Of course, the Governor’s issue here is not the tree itself, but the name of the tree. This is a distinction without a difference. If there were an Establishment Clause violation, changing the name would not be sufficient to remedy such violation. And let us not forget that the White House displays a Christmas tree and has an annual Easter egg hunt. Either the Presidents have all missed the unconstitutional boat, or Governor Chafee has.

Making the Governor’s constitutional analogy even less apt, however, is the irony that the State House also has a yearly Menorah lighting ceremony. In County of Allegheny v. ACLU, Justice Sandra Day O’Connor stated that, because a Menorah was a sectarian symbol, its display on public property was permissible only because it was part of a secular display that included a Christmas tree. Yet, in this case Governor Chafee gets it backwards by finding that the secular symbol more constitutionally problematic than the sectarian one.

In short, Governor Chafee’s attempt to rationalize his position by invoking Supreme Court precedent on the Establishment Clause was completely irrelevant to the issue at hand and is more likely a pretext for his true reason for calling it a Holiday tree – he doesn’t want to “offend” people.

The Governor’s Doctrine of Non-Offensivism

Governor Chafee’s second explanation of his position was that “times are changing” and that State House is a building paid for by all the taxpayers. Thus, because some hypothetical taxpayers might be offended by calling it a Christmas tree, it must be called a Holiday tree. This is a textbook example of what I refer to as the Doctrine of Non-Offensivism. It is worse than political correctness. It is when someone makes a value judgment based on the fear that someone MIGHT be offended. Not humiliated. Not embarrassed. Not outraged. Simply offended.

Of course, at the same time as Governor Chafee is trying to not offend some, he has by his own admission, offended all. However, rather than re-evaluating the situation based on the will of his constituency, the Governor stubbornly stands up for a position that has no basis in law, no support from the public, and no apparent purpose whatsoever. And in this likely innocent miscalculation, Governor Chafee shows the dangers of this kind of interventionism.

The Slippery Slope of the “Holiday Tree”

Some pundits have cited Rhode Island’s “Holiday Tree” fiasco as part of a “War on Christmas.” Whether or not there is any basis for that is far beyond the scope of this article, but one dangerous consequence of which we must be mindful is an encroachment by the government, intentional or not, on any culture’s traditions. Consider the following:

Charles Dickens’s A Christmas Carol is required reading at many public schools throughout the country. If a state can take turn a Christmas tree into a Holiday tree so as not to offend a hypothetical base of taxpayers, could a public school require a teacher to alter the content of A Christmas Carol to make it less “offensive” to children who do not celebrate Christmas? In such a scenario the book could be called A Holiday Song, there would be ghosts of Decembers’ Past, Present, and Future, and when Scrooge’s night of visitation ends, he would not be wondering is he had missed Christmas; he could simply show concern that he missed Wednesday. And of course, Tiny Tim’s line “God bless us everyone,” would have to be changed to a far less offensive version such as “Let’s eat.” Humor aside, by so altering Dickens’s classic we would find ourselves walking down the path of a far darker novel – George Orwell’s 1984.

At the end of the day, a Christmas tree is a Christmas tree and there is no constitutional reason not to display one and properly name it. If the Governor believes that putting up a Christmas tree and calling it as such will offend people, he should simply not put one up. But this “Holiday tree” sequel merely reinforces that the Governor must focus less on misguided attempts to change Rhode Island’s culture and more on changing its unfortunate economic condition so that people who want to display Christmas trees will be able to afford one.

Ian Prior is a Providence attorney and the former manager of Brendan Doherty’s Congressional campaign.

 

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