Perry Dane (Rutgers School of Law - Camden) has posted Christmas on SSRN. Here is the abstract:
This paper, which is still in a very early form, looks again at the recurring problem of Christmas and the Constitution. Conventional Establishment Clause analysis of Christmas is built on three propositions: First, Christmas is in a sense two holidays: a Christian celebration of the birth of Jesus, and a secular winter holiday. Creches and the like are symbols of the religious Christmas, while trees and Santa Claus are among the trappings of the secular Christmas. Second, government participation in celebrating the secular Christmas is unproblematic. Third, celebrating the religious side of Christmas does risk violating the Constitution, but embedding the religious element in a secular context can mitigate the infirmity.
Much of the criticism of current doctrine has honed in on the third of these propositions. I want to focus, however, on the premise of a "secular" Christmas on which the first two propositions of the doctrine are built. My argument is that the notion of a secular Christmas, and the assertion that the tree and Santa and so on are secular symbols of that secular Christmas, are both deeply problematic. More specifically, I argue that Santa and the like play a complex, rich, and tension-filled role in the "religious economy" of Christmas, and that we cannot begin to tackle the constitutional problem of Christmas until we unravel that complexity. Santa and the tree, even if they carry little or no propositional content, are "religious capital" - "cultural accessories" to the religious meaning of Christmas. And, paradoxically, they can also, under certain circumstances, take on downright anti-religious meaning. When the government adopts these objects and symbols and practices for itself, the effect is religiously and constitutionally complex. The solution to these problems, however, is itself neither obvious nor straightforward.
