Christmas is right around the corner, meaning that the time has come for the usual passel of lawsuits and threats of lawsuits, of bitter division over words and symbols — in short, of all the usual trimmings of the season.
In New York City, on the Upper East Side, a lawyer has filed suit against a wealthy neighbor for playing Christmas music too loud outside her townhouse. The music apparently runs from 7 a.m. until midnight, and the plaintiff says he is not against Christmas music as such — he just wants a break from his neighbor’s loudspeakers.
Meanwhile, in Knightstown, Indiana, the town council has bowed to a threat of a lawsuit from the American Civil Liberties Union and removed the traditional cross from atop its Christmas tree. The council was advised that it was unlikely to prevail, and in any case, it was not sure the town could afford the cost of the litigation. But many of the townspeople are wounded and angry.
It’s important to understand that Christmas as celebrated in the U.S. did not begin as a religious holiday. It was, in the words of historian Stephen Nissenbaum, an “invented tradition.” In his marvelous book “The Battle for Christmas,” Nissenbaum reminds us that Christmas in the 18th and 19th centuries began as something raucous, an atmosphere of carnival and misrule. People misbehaved, openly and ostentatiously. The churches wanted nothing to do with it, and the Puritans even tried to ban it. But the forces of commerce and domesticity were too great to resist. Children wanted presents, and grownups wanted to relax and celebrate. And so, gradually, the churches gave in.
Our current struggles over the holiday should not be viewed as the inevitable waning of the sacred and the triumph of the secular. It’s more accurate to say that the secularization of Christmas that so many claim to hate represents a return to the old days. Another way of putting the point is that the Christian Christmas, like an overloaded tree, cannot bear the weight of everything that is hung upon it. The holiday has grown too large and central for the culture. When we develop our often-complex network of legal rules to govern the manner of celebrations public and private, we wade deeper and deeper into what is not so much a controversy as a cultural evolution.
It would be nice if we could work out most of these matters without resorting to litigation. The battle is not really legal or political at all. It is epistemic and perhaps even teleological. Such fights should lead to compromise, but they hardly ever do.
First, the New York neighbor whose music is too loud. I have as healthy a respect for religious freedom as one is likely to find on a law school faculty these days, but noise ordinances, like other reasonable time, place and manner restrictions, ought to apply. (Had we a defendant who claimed that being loud is a central tenet of her faith, we might have a tougher case. But that does not seem to be what the Upper East Side is facing.)
As to Knightstown — sorry, folks, but the ACLU is right on the law. There are a lot of ways to secularize a Christmas display, but a cross is not one of them. Notice that here we are speaking not of the volitional act of a single teacher but of the formal act of the government. That fact makes an enormous constitutional difference.
Having said that, it’s worth noting that the good people of Knightstown have responded to the council’s decision by posting crosses on private property all over the town. This seems to me an appropriate response for those who are upset. One risk of suing to stop a single governmental display is that after you win you find yourself surrounded by dozens or hundreds of private displays instead. Whether the trade-off is worth it is not a legal question.
So, as I said, we’re having a typical Christmas season. Lawsuits everywhere. Maybe that’s inevitable. But it’s too bad we have to fight the same battles every year. That isn’t what Christmas is supposed to be about.
Stephen Carter is a Bloomberg View columnist. He is a professor of law at Yale University, and he was a clerk to U.S. Supreme Court Justice Thurgood Marshall.