The Christmas Holiday of 1870 and the Establishment Clause

It does not take a sophisticated legal realist to recognize the hopelessness of any claim that the status of Christmas as a state or federal holiday violates the Establishment Clause. Justices don’t want to be the greatest grinches of all time.

And, in any event, under current law it is clear the current Christmas holiday is constitutional. It has a secular purpose and context as well as a religious one—most importantly being the anchor of the holiday season that more than any other boosts consumer spending. Evaluating Christmas as a holiday is a bit like evaluating Christmas displays themselves for constitutionality. A secular context, like enough dancing reindeers or increased GNP, can redeem the religious content. It may seem odd to a layman but the more crassly commercial Christmas becomes, the more it becomes legally safe as a holiday.

But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause. Christmas was first declared a federal holiday in 1870. At that time Christmas was a predominantly religious holiday without the overwhelming commercial aspect of our contemporary world.

As far I can tell, there was no substantial objection to the holiday on the basis of the Establishment Clause. The lack of objection to giving official status to a predominantly religious holiday suggests that the meaning then attributed to the Establishment Clause does not comport with the so-called “endorsement test” employed today to test for violations of the Clause. The government proclaimed a Christmas holiday, although that proclamation, like the forbidden religious Christmas display today, may give the appearance of endorsing a religion.

Recognizing the constitutionality of religious holidays, however, is consistent with the so-called “coercion test” for the Establishment Clause that holds that only coercive support of religion, like forcing citizens to pay taxes to a church, triggers its prohibition. A holiday, even one which is predominantly religious, is not coercive in this respect. Even if it suspends commercial obligations till the next day, as does the bank holiday created by the 1870 law, citizens will not be made substantially worse off by a brief delay that is applied equally to all.

Now there are many possible objections to the relevance of this evidence for the original meaning of the Establishment Clause. The Establishment Clause was enacted in 1789—years earlier than the federal holiday was created. But much modern scholarship concludes the entire Bill of Rights was applied to the states through the 14th Amendment in 1868—just two years before the holiday declaration. If so, this Christmas holiday act is relevant evidence, assuming, of course, that the incorporated Establishment Clause has the same meaning with respect to states as the original one has with respect to the federal government—another difficult issue.

And some constitutional theorists might object to this type of evidence entirely, because it concerns an “an expected application” of a constitutional principle rather a parsing of the language of the principle itself. Mike Rappaport and I have argued that such a dichotomy is false. The meaning of  moral and legal principles can sometimes be best be pinned down by looking at their applications.

I would spend more time on these interesting objections and assumptions but for the need to go wassailing myself. Merry Christmas to our readers!

Reader Discussion

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on December 24, 2016 at 09:28:34 am

Excellent essay, and most convincing rebuttal to Professor Balkins. It seems "Living Constitutionalists" are apt to reject history except when it is necessary to back into it in order to insert between its lines, spurious notions retroactively supportive of its present perversion.

Perhaps uncomfortable in, and uncertain of, the skins they presently find themselves clothed in, they are left to assume the enactors of the constitution were equally as uncomfortable and uncertain in their own.

Lest my words be interpreted to be unseasonably harsh, I am swift to extend my best wishes for peace and good will to all, especially to those to whom I may have offended.

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Paul Binotto
on December 24, 2016 at 16:39:21 pm

Rather than focusing on an event that occurred a hundred years after the ratification, I think the far stronger evidence for this was (1) the fact that church services were regularly held in the House of Representatives until after the civil war, (2) each of the house and senate select chaplains which leads the body in an opening prayer. If anything is an official "endorsement" it would seem to be these, and yet they have never been understood to violate the clause. Far more likely seems to be the coercion test, but this (as you explain) also means taxing people to then give the money to a church.

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Devin Watkins
on February 09, 2017 at 17:05:10 pm

Well, any unconstitutional action will be sanctioned by the courts as long as it is "traditional" enough.

Religious people never think they are doing anything wrong no natter how trivial or egregious the infringement.

In this case, the NAME OF THE GOD IS IN THE NAME OF THE HOLIDAY. How much more obvious of an establishment does one need?

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