Sunday, December 25, 2022
Christmas and the Law
Thinking about a holiday-appropriate topic to write for Christmas, the false claims that there is a war on the holiday came to mind. Attempts to acknowledge the holiday but preserve the secular nature of a government that neither advances nor inhibits religion, gave us the two-reindeer rule. The “rule” comes from the 1984 case of Lynch v. Donnelly, where the city of Pawtucket, Rhode Island, had long sponsored a display in a shopping district. That consisted of a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," reindeer pulling a sleigh, and a creche.
In rejecting a challenge to the display based on the Establishment Clause by a 5-4 vote, the Supreme Court held it to be a holiday display, rather than advocacy of a religious message. The Court treated the items featured as advancing the historical origins of the holiday and considered that to provide "legitimate secular purposes." The most religious item in the display, the creche, passively connected to the holiday “like a painting” in a government museum, the Court said. The nearby display of reindeer and a sleigh, it went on to say, were secular symbols that conveyed “a friendly community spirit of goodwill in keeping with the season.” Derisively, the ruling was dubbed the “two-reindeer” rule because, according to a predominant reading of the case, adding two reindeer to an otherwise religious display transformed it into something secular.
Interestingly, modern attitudes toward Christmas have changed substantially. In 1659, Massachusetts had a law called the “Penalty for Keeping Christmas,” that stated:
For preventing disorders arising in several places within this jurisdiction, by reason of some still observing such festivals as were superstitiously kept in other countries, to the great dishonor of God and offence of others, it is therefore ordered by this Court and the authority thereof, that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon such accounts as aforesaid, every such person so offending shall pay for every such offence five shillings, as a fine to the country.
The law reflected the thought that making this deeply religious day into a festival brought “great dishonor” to God and reflected Puritan attitudes about Christmas. Puritans believed that celebrating Christmas entailed wasteful activities and social excess that were both immoral and antithetical to Christian beliefs. Fourteen years before the Massachusetts law came into being, the English Parliament promulgated a “Directory for Public Worship” that treated so-called festival days, including Christmas, as periods of private contemplation and not celebration. By 1677, English law flipped, and it became illegal for any ”person whatsoever to do or exercise any worldly labour, business or work of their ordinary callings” on Christmas Day.
Recalling these transformations of attitudes in an appellate advocacy blog serves only to show that even deeply religiously held convictions can change, much as the law itself demonstrates a capacity to develop in sometimes unpredictable ways – and advocacy assumes a significant role in the law’s development.
Still, however you celebrate, enjoy the holiday, and I wish you a happy new year.
 Lynch v. Donnelly, 465 U.S. 668 (1984).