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.

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.

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