The Downward Spiral of Legal Insult

Here’s a story about the banning of Halloween festivities in some public school districts in Pennsylvania. Many of the reasons are unremarkable–worries about security and the secreting of weapons under costumes, concerns about taking away from regular classroom instruction.

But at least some of the reasons stem from conceivable First Amendment violations. And these reasons relate directly to the issue of Halloween’s putative offensiveness to Christians. “Right now,” said Professor Charles Haynes, “school officials should be sensitive that for many people witches, ghosts, and demons have religious connotations, however much they may be sanitized in culture.”

The argument appears to track the sort of constitutionalized insult claim that I discussed and criticized in this post. There, I asked the question of who, precisely, could possibly be offended, or confused, by the state’s lighthearted celebration of a silly occasion like Halloween for the sake of schoolchildren. It might seem from this story, and from Professor Haynes’s comments, that, in fact, there are many people who take deep offense at Halloween as a “religious” celebration that is insulting to Christians.

But a close reading of the story reveals that it is not confusion or insult at Halloween per se that is driving at least some such complaints. It’s rather the memory of the government’s perceived marginalization of Christmas on prior occasions–again, ostensibly to adhere to the Supreme Court’s heckler’s veto jurisprudence of offensiveness in this area–that has inflamed a sense of hurt and offense. As Haynes puts it: “If you can’t have Jesus in December, why can we have witches in October?” (emphasis mine) Haynes says that he “understands that claim.” I understand it too but that claim has nothing to do with Halloween itself. That assertion of hurt feelings suggests that it isn’t anything about Halloween or ghosts or dress-up or whatever that is confusing or hurtful for religious reasons. Celebrations of Halloween have been occurring in schools for decades now, and it would be odd to see a sudden “backlash” against Halloween on these grounds.

Rather, it is the perceived marginalization of Christmas by the school district–and the offense and hurt feeling that that has caused–which now bubbles up and finds expression in complaints about Halloween as a “religious” occasion. An occasion that previously was only slightly offensive, or not offensive at all, has become much more offensive in light of the culture of offense that itself is felt to have down-graded holidays like Christmas.

So goes the logic of insult–responsive as it is to tit-for-tat hurts and slights. It would be unfair and probably incorrect to say that the Supreme Court is primarily responsible for cementing a culture of insult in law. But by adopting a jurisprudence of offense in this area, it has set itself up for an untenable downward spiral of legal insult, as more and more occasions, activities, and educational traditions become the object of legal claims of unfairness, inequality, or offensiveness.

Thanks to Perry Dane

A hearty thank you to Perry Dane, who joined us as our guest over the past month. We’ve greatly enjoyed having you with us, Perry. Come back soon!

Furedi, “Authority: A Sociological History”

9780521189286In September, Cambridge University Press published Authority: A Sociological History by Frank Furedi (University of Kent, Canterbury). The publisher’s description follows.

Concern with authority is as old as human history itself. Eve’s sin was to challenge the authority of God by disobeying his rule. Frank Furedi explores how authority was contested in ancient Greece and given a powerful meaning in Imperial Rome. Debates about religious and secular authority dominated Europe through the Middle Ages and the Reformation. The modern world attempted to develop new foundations for authority – democratic consent, public opinion, science – yet Furedi shows that this problem has remained unresolved, arguing that today the authority of authority is questioned. This historical sociology of authority seeks to explain how the contemporary problems of mistrust and the loss of legitimacy of many institutions are informed by the previous attempts to solve the problem of authority. It argues that the key pioneers of the social sciences (Marx, Durkheim, Simmel, Tonnies and especially Weber) regarded this question as one of the principal challenges facing society.

Steensland & Goff (eds.), “The New Evangelical Social Engagement”

9780199329540Next month, Oxford University Press will publish The New Evangelical Social Engagement edited by Brian Steensland (Indiana University) and Philip Goff (Indiana University-Purdue University Indianapolis). The publisher’s description follows.

In recent years evangelical Christians have been increasingly turning their attention toward issues such as the environment, international human rights, economic development, racial reconciliation, and urban renewal. Such engagement marks both a return to historic evangelical social action and a pronounced expansion of the social agenda advanced by the Religious Right in the past few decades. For outsiders to evangelical culture, this trend complicates simplistic stereotypes. For insiders, it brings contention over what “true” evangelicalism means today.

Beginning with an introduction that broadly outlines this “new evangelicalism,” the editors identify its key elements, trace its historical lineage, account for the recent changes taking place within evangelicalism, and highlight the implications of these changes for politics, civic engagement, and American religion. The essays that follow bring together an impressive interdisciplinary team of scholars to map this new religious terrain and spell out its significance in what is sure to become an essential text for understanding trends in contemporary evangelicalism.

Around the Web This Week

Some interesting law & religion stories from around the web this week: