A Festivus for the Rest of Us

Posted in: Constitutional Law

Fans of the sitcom Seinfeld will recall that Frank Costanza (memorably portrayed by Jerry Stiller) invented a spartan holiday called Festivus, commemorated each December 23 with a bare aluminum pole, “feats of strength” and the “airing of grievances.”

Although the last new Seinfeld episode aired over fifteen years ago, Festivus lives on, and not just in reruns.  Thousands of Americans actually celebrate Festivus in the Seinfeldian “tradition.” There is even Festivus research showing that the holiday predates Seinfeld.  Occasionally, a Festivus celebration has legal consequences.  For example, three years ago, an inmate reportedly received kosher meals on religious grounds—citing Festivus.

Last week, the stakes were raised still higher when Chaz Stevens erected a Festivus Pole in the Florida Capitol, alongside a Nativity scene that had been placed by a Christian group. Upon learning that the same group sought to place Nativity scenes in state capitols throughout the country, Stevens told an NPR reporter that he would follow suit. Indeed, Florida was not even the first state capitol to be adorned with a Festivus pole. That honor goes to Wisconsin. So before long, Festivus could be coming to a state capitol near you.

That is remarkable, given two facts about religion in America. First, according to the most reliable survey, more than half of Americans regard religion as very important in their lives and more than four-fifths regard religion as at least somewhat important. Second, for roughly the last three decades, the Supreme Court has interpreted the First Amendment’s Establishment Clause quite flexibly, so that Justices who insist on Thomas Jefferson’s “wall of separation” between church and state increasingly find themselves in dissent. And yet, government officials around the country feel compelled to permit Festivus poles as part of their official holiday celebrations.

How did we get to this point? The short answer is that Festivus poles in state capitols are an unexpected side effect of the Supreme Court’s Establishment Clause jurisprudence. The somewhat longer answer follows.

The Plastic Reindeer Rule

The story begins, more or less, in Pawtucket, Rhode Island. That city erected a holiday display that included a crèche depicting the birth of Jesus. Objecting residents and the Rhode Island affiliate of the ACLU sued and the 1984 Supreme Court ruling in Lynch v. Donnelly resulted.

Although a crèche by itself is undoubtedly a religious display, the high Court nonetheless rejected the Establishment Clause challenge in Lynch on the ground that, taken as a whole, the display was merely a secular recognition of the holiday spirit. As described by the majority opinion, the display included not only a crèche but also Santa Claus, reindeer, candy-striped poles, a Christmas tree, a clown, an elephant, a teddy bear, hundreds of colored lights, and a large “Seasons Greetings” banner.

The Lynch case appeared to provide a blueprint for government officials seeking to include an overtly religious symbol—like a crèche—in their holiday displays: Surround it with non-religious symbols of the season, like plastic reindeer or Frosty the Snowman. And indeed, the Court followed through on this principle in a 1989 case from Pittsburgh, County of Allegheny v. ACLU. There, the majority invalidated a (mostly) standalone crèche display on the steps of a courthouse, even while upholding a separate display of a Christmas tree and Hannukah menorah.

But if the Lynch rule is easy to state, there remain two sources of difficulty. First, for a long time, the Supreme Court has been deeply divided about the wisdom of, and rationale for, the “plastic reindeer rule.” County of Allegheny itself produced five separate opinions.

Second, even accepting the plastic reindeer rule, it is not always clear just how many plastic reindeer equivalents it takes to neutralize any particular religious display.  Two cases decided on the same day in 2005—Van Orden v. Perry and McCreary County v. ACLU—illustrate the difficulty.

In Van Orden, the Court upheld the display of a six-foot high monolith containing the Ten Commandments in a park surrounding the Texas State Capitol, while in McCreary County, the Court invalidated the display of smaller copies of the Ten Commandments in two courthouses in Kentucky. If you think that result might be explained by the different contextual surroundings of the two displays, consider that only Justice Breyer voted in the majority in both cases, which collectively produced ten separate opinions and dissents.

The Public Forum Solution

Given the uncertainties surrounding the plastic reindeer rule, what is a government official tasked with overseeing a holiday display to do? She can exclude religious displays entirely, but then she risks antagonizing a majority of citizens. Yet including any deeply religious elements in the display virtually invites litigation by members of religious minorities, the non-religious and the ACLU.

Nor can our hypothetical government official evade responsibility by outsourcing the task to a private group. In most of the cases described above, part or all of the funding for the challenged religious displays came from private groups. But so long as the government played some role in selecting which displays to permit, it risked violating the Establishment Clause.

Nonetheless, radical outsourcing solves the problem. The Justices most troubled by government-sanctioned religious displays identify the constitutional violation as government endorsement of religious views.  But if the government truly stays out—that is, if the government opens up public property for anyone who wishes to erect a display—then the government cannot be reasonably viewed as endorsing any particular religious (or other) view.

And that brings us to Festivus.

In order to steer clear of litigation, Florida designated its Capitol a “public forum”—the term constitutional lawyers use to refer to a space where anyone can have his or her say, subject only to reasonable, content-neutral time, place and manner limits. To be sure, the government still has some leeway in setting the ground rules for displays in a public forum: It can restrict the size of displays, for example.  But it cannot make judgments about the message: Christmas, Hannukah, Kwanzaa, Saturnalia, and even Festivus—all are equal in the eyes of the public forum.

This approach may seem odd or even disrespectful to those whose sacred celebrations are now treated as no different from a sitcom-joke come-to-life. Yet is it really worse than having government officials try to guess just how many reindeer Santa needs in order to cancel out the religious message of Mary, Joseph, wise men, and the baby Jesus? And isn’t it also potentially disrespectful to Christians to say that the Nativity scene somehow loses its religious significance when Santa and Frosty are nearby?

Government officials may have turned to the public forum approach without realizing that they would end up with displays celebrating Satan, the Flying Spaghetti Monster or Festivus. Nonetheless, they appear to have stumbled onto the best course available.

Better than the government-approved, sanitized and watered-down version of various mainstream religions that the plastic reindeer rule yields, the public forum approach reminds everyone of the ultimate reason why we have an Establishment Clause—because people hold diverse views about religion. In letting the People themselves express their views—in all of their piety or absurdity—the public forum approach invites nonbelievers and believers of all different faiths to address one another on a level playing field. You might even say it’s a Festivus miracle.

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