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.

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