Over the summer, the Texas Legislature passed the “Merry Christmas Law.” With the first Yuletide under the new law now upon us, folks are revisiting the law’s wisdom or lack thereof. The law provides that a “school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including: (1) “Merry Christmas”; (2) “Happy Hanukkah”; and (3) “happy holidays” [ . . . ] A school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of: (1) more than one religion; or (2) one religion and at least one secular scene or symbol.” The law also provides that any displays may not include “a message that encourages adherence to a particular religious belief.”

Admittedly, this sort of law at first sounds a bit like a legislative resolution saying, “Can we all just agree once and for all that America is seriously the greatest country ever and Jesus totally loves us best?” There’s a problem, though, with commentators who “find it hard to believe any Christmas-observing child feels deprived of the holiday spirit in school, especially in Texas.” The problem is that some Texas schoolchildren have, indeed, had their rights infringed upon by school officials. Many liberals respond as though laws like this and the outrage that inspires them are silly. But ask Jonathan Morgan, and he’ll tell you that it’s not so silly…

Jonathan Morgan, three other Texas children, and their parents sued administrators in the Plano Independent School District in a case decided on appeal by the Fifth Circuit in 2011. The plaintiffs claimed that school officials violated the children’s First Amendment rights by interfering with the students’ religious speech. During one of the events giving rise to the suit, Morgan wanted to bring goody bags to his third-grade class’s “winter-break party.” The goody bags included pens shaped like candy canes, attached to bookmarks containing “The Legend of the Candy Cane.” The bookmarks describe how candy canes were originally meant to convey Christian symbolism. The principal prohibited their distribution because of the religious content of the bookmarks.

The 100-page en banc opinion in Morgan v. Swanson, with no fewer than seven special concurrences, lays out the law in the sort of crystalline fashion that only triple-digit pages of en banc jurisprudence can. Even though a majority of the Fifth Circuit found that the students’ First Amendment rights had been violated, a separate majority found that this wasn’t a matter of clearly established law at the time. So, it is not crazy for the Texas Legislature to later pass a law that specifically addresses the issue. Isn’t this what we typically encourage legislatures to do?

People in states without Merry Christmas Laws or in settings where such laws don’t apply muddle along, trying to find the line between infringement on the rights and sensibilities of Christians and those of non-dominant faiths or no faith at all.

I grew up in a non-religious household. My Hitchens-style atheist dad let my brother and me have fun with the Santa Claus mythology when we were tiny, just as he did with the Tooth Fairy and the Easter Bunny. None of it had a wit to do with God, much less Christianity, both of which he enjoyed mocking without protest from the rest of the family. (I later became a Christian, but the rest of the family did not.) It primarily had to do with my dad getting a kick out of lying to his kids for fun, which I gather is the prerogative of many a loving father. It secondarily had to do with us kids enjoying ourselves.

Christmas was never our family’s holy day. As a child, I knew what Christians believed about the day, but believed then that they were wrong. Rather than rail against every round of “Silent Night,” though, our family took what we liked and left what we didn’t.

Growing up openly atheist taught me some important lessons about being different. For one thing: it’s okay to not be a part of the dominant group, so long as that dominant group isn’t actually harming you. While discrimination and persecution are real, simply being aware that you are different from most of the people around you does not hurt you.

At the law school where I work, we have an annual Christmas Luncheon, not a “Winter Break Luncheon.” There’s even a separate flyer advertising the lunch’s “Christmas S’Mores Station.” Jesus would be proud of whoever first thought of that.

Jews, Muslims, Hindus, atheists, and agnostics attend or work at our law school too, of course. Wishing a Jew “Merry Christmas” may be like you wishing me “happy birthday” on your birthday. Harmless, even if a bit confused. But what happens to the nonbeliever who wanders by these Christmas festivities? That nonbeliever gets a bunch of people expressing good tidings, in the jargon that makes sense for the speaker.

And they get s’mores. Any claim of offense that also involves equal access to toasted marshmallows and melted chocolate is presumptively invalid, as far as I’m concerned. Free s’mores. Not exactly being shipped off to Treblinka.

The New York-based Satanic Temple just announced that it wants to build a monument on the grounds of the Oklahoma Capitol. The Satanists’ request responds to the Oklahoma Legislature’s recent erection of a privately funded Ten Commandments monument. That monument was installed on the Capitol grounds last year despite criticism from legal experts who questioned whether it violated the Establishment Clause.

Lucien Greaves is a spokesman for the Temple. (Apparently born Doug Mesner, he rebranded himself. Satanists are like rappers and porn stars in that way.) He insists that the monument would be in good taste and “consistent with community standards,” except, I guess, the oft-overlooked Oklahoma community standard of not celebrating the Prince of Darkness on the Statehouse steps. In a letter to state officials, Greaves said one potential design involves a pentagram, while another is meant to be an “an object of play for children.” (Yes, but where are the s’mores, Mr. Greaves?)

One man’s religious expression is another man’s looming incursion on sacred tradition and yet another man’s clutter in front of the courthouse. When everybody with a sincere belief gets a monument, things start to look pretty crowded to me. My aesthetic snobbery aside, the Satanists’ response to the Oklahoma Legislature seems more right than wrong. Respond to expressions of competing religious beliefs with your own expression, not with more restrictions on the expressions of others.

While people debate the necessity of the Texas Merry Christmas Law, I endorse free (or nearly-free) expression for all, rather than free expression for none, including during the holiday season. I’d rather have to walk past a display of an animatronic Anton LaVey in order to enter the Oklahoma Capitol than have a kid get detention for uttering “Merry Christmas” to his classmates. Let Jonathan Morgan bring his candy canes; let the Greaves children bring their plastic pentagrams. And let’s all recall that being different is not the same as being persecuted.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


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