Why Doesn’t Christmas Violate the Separation of Church and State? – Vayiggash 5775

I hope everyone had a wonderful time on the national holiday of the Twenty-Fifth of December.  I sure did.  It’s one of my favorite days of the year.  The shul is closed.  The streets are empty.  No responsibilities.  I get to sleep in.  We usually go on a family hike.  This year, it was a beautiful crisp, sunny day.

Growing up, I was always pretty sensitive this time of year.  When I was in first grade attending public school in Atlanta, our music teacher had us singing gospel songs that were certainly of a religious nature.  I told my parents, and my dad was on the phone with the principal that night.  The next day in music class, the gospel songs were gone, and a token Chanukah song had been added to our repertoire.  So yes, I was the Jewish kid who destroyed Christmas.

I think this was a pretty common experience for Jewish kids growing up in a largely Christian society.

We are fortunate to live in a time when there is a great deal more sensitivity to these kinds of issues, and in a part of the country that is especially diverse.

But the dominance of Christmas is still inescapable.  How is it possible that in a country like the United States, which prides itself on having a separation between church and state, one of our national holidays can be Christmas?

Let’s take a look at the First Amendment.  It begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The separation of church and state is understood to have two clauses.  The first is the anti-establishment clause, which is summarized quite well by Justice Hugo Black, writing for the majority in the 1947 decision in Everson v. Board of Education.

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.

Simply put, the government cannot establish or favor any particular religion, or even religion in general.

The other aspect of the First Amendment is known as the free exercise clause.  The government is not allowed to curtail the beliefs of any individual or group, nor can it restrict a person’s religious actions unless those actions are “subversive of good order.”

How is it possible that Christmas could be a federal holiday?  Is not this a violation of the anti-establishment clause of the First Amendment?

Probably not.  But maybe.

When did Christmas become a national holiday?

In 1870, President Ulysses S. Grant signed into law a bill passed by Congress creating the first federal holidays in the United States.  Most of the states had already established state holidays, but this was a first for the national government.  Initially, it only applied to employees of the federal government in Washington, D. C.  Several years later, it was expanded to include all federal employees.  There were five days.  The bill’s title was:

An Act making the first Day of January, the twenty-fifth Day of December, the fourth Day of July, and Thanksgiving Day, Holidays, within the District of Columbia.

It went like this:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the following days, to wit: The first day of January, commonly called New Year’s day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving, shall be holidays within the District of Columbia…

Notice a couple of things.  First, the title of the bill does not mention the word “Christmas.”  It says “the twenty-fifth day of December.”  The bill itself also uses that expression, adding, almost as a sidebar, that the day is “commonly called Christmas Day.”

In 1870, just five years after the end of the Civil War, there were still deep divisions between the North and the South.  Northerners tended to get really excited about Thanksgiving, while Southerners made a big deal about Christmas.  One impetus behind the federal holidays bill was to create national unity.

As you can imagine, there have been cases brought to the courts, usually regarding Christmas displays on public property.  The courts have basically drawn a line between what they see as secular symbols and what they define as religious symbols.  For example, a nativity scene in which an angel is holding a banner with “Glory to God in the Highest” written in Latin was seen as religious.  Images like Santa Claus, reindeer, a Christmas tree, or a menorah, for that matter, are typically seen as secular.  In a court case involving Jersey City’s public holiday display, the presence of symbols from different traditions like a Christmas tree, Kwanza symbols, a Menorah, Frosty the Snowman, and a sign expressing the city’s intention to “celebrate the diverse cultural and ethnic heritages of its people” was accepted by the 3rd Circuit in 1999.  As long as minority traditions are also included with the majority, the courts tend to permit it.

As a people, we have had to deal with being a minority in the midst of a dominant culture for most of our existence.

In this morning’s Torah portion, Vayiggash, Joseph is finally reunited with his family.  He invites them to join him in Egypt, where they will thrive under his protection and favored status, but it is clear from the beginning that they do not in.  Joseph instructs his brothers to tell Pharaoh that they are breeders of livestock, because that is a profession which is abhorrent to Egyptians.  By telling this to Pharaoh, Joseph’s family receives rights to settle in the fertile land of Goshen, and to receive a special commission to care for the royal flocks.

On their way down, God appears to Jacob with a message of assurance:  “Fear not to go down to Egypt, for I will make you there into a great nation.  I Myself will go down with you to Egypt and I Myself will also bring you back…”  The commentator Ha-emek Davar explains that God is reassuring Jacob that his descendants will not forget who they are.  They will maintain their distinctiveness first as a family, and eventually as a nation.

Initially at least, we see tolerance on the part of Pharaoh and the Egyptians.  They permit this tribe, with its strange customs, to live in Egyptian society, and to maintain their cultural and religious practices.  In next week’s Torah portion, when Jacob dies, the Egyptian dignitaries participate with Joseph and his brothers in the mourning rituals as they bring their father’s body back to the ancestral burial site in the Land of Canaan.

Unfortunately, this tolerance does not last, and a new Pharaoh arises who does not know Joseph, and who does not share his predecessor’s generosity and open-mindedness.  So we understand well how important it is to protect the religious freedoms of others.

I have always felt that, as a Jew, I had a greater awareness of the experiences of minorities than those who were in the dominant culture.  Being a minority prepares us to better respect religious diversity.

But what if Jews were in the majority?  How would we deal with issues of religious freedom then?

In 1948, Israel was established as the nation state of the Jewish people.  The Declaration of Independence, issued shortly after the United Nations Partition Plan passed, “declare[d] the establishment of a Jewish State in Eretz-Yisrael, to be known as the State of Israel.”

It went on to declare certain freedoms which should sound familiar to us:  “…it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture…”

So how can Israel, on the one hand, be “the Jewish State” while also ensuring equality and freedom for all, irrespective of religion?

To be fair, many, if not most of the world’s democracies have official state religions, or offer certain favorable status to one particular religion while still protecting religious freedom.  It is the United States which is unusual in not favoring any particular religion.

In building a new nation in 1948, Israel’s founders had some important decisions to make.  Most of them were fiercely secular Jews, yet they looked to Jewish history, traditions, and customs to determine some of the core aspects of the State.

One basic question they had to address was: when is the weekend?

In the U.S., the weekend was originally just Sunday.  The two day weekend developed over the course of the twentieth century.  Would Israel follow the example of the rest of the Western world and go with Sunday, or would it copy its Muslim neighbors and choose Friday?

Of course, you know the answer.  Shabbat has been the weekend of the Jewish people for thousands of years, not just in religious terms, but in national terms.

What about holidays?

Again, Israel’s founders looked to Jewish tradition and established the Yamim Tovim, the holidays on which work is religiously forbidden, as national holidays.

In the Ordinances of Law and Government, Section 18a, subsection 1, paragraph a, it states:

Shabbat and the Jewish holidays—the two days of Rosh HaShana, Yom Kippur, the first day of Succot and Shmini Atzeret, the first and seventh days of Passover and the holiday of Shavuot—are the fixed days of rest for the State of Israel.

What about non-Jews?  Israel’s founders were emphatic about ensuring equality and the right to freely practice religion.  This brings us to paragraph b.

For those who are not Jewish there is reserved the right to observe their days of rest in accordance with their Sabbath and holidays. These holidays will be set in accordance with each community by the government and published in the public records.

To summarize, the law states the following in subsection 2:

The laws of work hours and rest of 1951, which apply to weekly periods of rest, will apply:

a. To Jews—on their holidays

b. To non-Jews—on the Jewish holidays or on the holidays of their community, whatever is acceptable to them.

In other words, if you are Christian, you can take your weekend on Sunday, and celebrate all the Christian holidays when they occur.  If you are Muslim, you can take your weekend on Friday, and celebrate all the Muslim holidays when they occur.  And those are not considered to be vacation days, but rather national holidays.

While it can get kind of complicated in the workplace, and I imagine that it is a nightmare for Human Resources departments, this is practiced and taken very seriously in Israel to this day.  Every religion gets its own weekends and national holidays.

We had a taste of something like this when we lived in New York.  Ostensibly to keep the streets clean in the five boroughs, but really to discourage car ownership, the city imposes alternate side of the street parking rules.  Pretty much every day of the work week, car owners have to get in their cars and move them to the opposite side of the street to make room for the street cleaners.  Failure to do so results in a fairly hefty ticket.

But what if you are an observant Jew (and there are a few of those in New York) and it is Rosh Hashanah, when it is forbidden to drive a car?  To deal with that situation, there are holiday suspensions of the alternate side parking restrictions.

“Wait,” you say.  Isn’t that a violation of the anti-establishment clause of the First Amendment?

Not if you make the holiday suspensions available to everyone.  Here are just a few examples of holidays on which alternate side parking restrictions are suspended:  Yom Kippur, both days of Shavuot, Purim (driving is technically allowed, but you can probably guess why the city doesn’t want Jews getting in their cars on Purim), Good Friday, Holy Thursday, Ash Wednesday, the Feast of the Immaculate Conception, Eid al-Fitr, Eid al-Adha, Diwali, and the newest entry in the list, the Asian Lunar New Year.

So I guess having a national holiday on the 25th of December does not bother me as much as it once did.  I can accept that for many Americans, as well as the U.S. courts, it is seen as a secular holiday.

So to all of us, Happy National Holiday of the 1st of January, coming up in just a few days.

 

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