‘Tis the season for wrangling over first amendment rights, it would seem.
The opening salvo of this year’s Christmas cacophony was probably some media muttering about the use of “Merry Christmas” versus “Happy Holidays” (which is, honestly, a silly debate revealing scrooges on both sides who can’t take an honest offering of good will as such). The most interesting debate of this season, however, began with an aluminum pole.
At 9am on December 11th, self described “militant atheist” Chaz Stevens erected a six-foot Festivus pole made of Pabst Blue Ribbon beer cans in the Florida State House Rotunda in Tallahassee. The Festivus pole is an emblem of Festivus, a holiday celebrated on December 23 which protests the over-commercialization (and religious pressures) of Christmas. The origins of this little-known holiday may be comedy, but the purpose of the pole was not.
By petitioning the State of Florida for his right to erect a Festivus pole in the state house rotunda, Stevens was compelling the government to establish its position on holiday displays relative to the first amendment. Florida either had to continue accepting holiday displays, or stand in violation of the Bill of Rights. The Festivus pole was simply a device through which Stevens held the government of Florida to its commitment to the law and secular government (government without and apart from religious agenda or influence).
You can read about the Festivus pole “controversy” by googling Chaz Stevens, or checking out his website: My Acts of Sedition (WARNING: Explicit content) for links to news about his holiday protest, but it all really boils down these words:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is the First Amendment, and the first sixteen words, also known as the establishment clause, form the foundation of what is commonly referred to as the “separation of church and state.” The notion of separation between the government and religious entities has been fleshed out through as series of court cases and other legal documents, perhaps most notably the 11th article of the 1979 Treaty of Tripoli, which reads:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
The Treaty of Tripoli was a standard treaty intended to define friendly relations between the United States and Ottoman Tripolitania to protect US shipping interests in the wake of its birth as a trading nation. It was submitted by President John Adams and ratified unanimously by the senate, and is thus a legally binding document.
In other words, the notion that the United States is neither founded upon, nor legally able to legislate principles of Christianity is not a recent debate, but part of our heritage and–arguably–a legal fact. Practically, this means that publicly funded buildings, lands, and institutions must either forsake all religious iconography and acknowledgment, or leave the door open for all forms of public expression. Since the Florida State House Rotunda in Tallahassee is considered a “public forum,” anyone may apply to put up holiday displays. If the state denies an application they risk being charged with violating the First Amendment, which beyond articulating a level of separation between church and state, also protects free speech and the right to air grievances.
A Festivus pole, which could be legally interpreted as a form of “speech” and was erected in protest, is thus covered on two fronts. If the city of Florida were to erect a Nativity scene, and reject a Festivus pole (or for that matter, a Menorah or Kinara), they could be sued for legal favoritism or “establishment” of Christianity as a state religion or (on the flip side) religious discrimination.
Technically, Florida walks a thin line by erecting a Nativity scene, and the safety of their position could hang on whether the city erected the scene, or a private individual applied to have it placed in the rotunda. Most importantly, Stevens’ protest is a reminder to the government of Florida and the nation that no matter the season, freedom of speech, and freedom of religion, which includes from religion, should remain at the heart of American governance.