Insults and Offenses Archives - LAW AND RELIGION FORUM

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.

Hurt feelings are unreliable bases for constitutional law. People are insulted by all sorts of things, their feelings of insult can change at breathtaking speed, and it is difficult to explain what ought to count as a constitutionally cognizable insult, and what ought not to, and why. And there is no area of constitutional law that is more dependent on judicial investigation and perception of insult or hurt feelings than the Establishment Clause–particularly the standard used to evaluate the constitutionality of religious displays by the government. Readers of this blog are probably familiar with the endorsement test, which demands that judges inquire after the degree to which a display might make someone feel like an outsider, or not fully part of the political community. That is a standard that depends on both judicial perception of insult and comparative valuations of insult (not all insults count).

My aim in this post is not to talk about that category of hurt feeling or insult, but about a related but less prominent argument about insults that one sometimes hears in connection with state-sponsored religious displays. It is the argument that for a religious person, when the government displays a religious symbol, it thereby robs or despoils the symbol of its sacredness. And when government then describes the nature and value of the symbol in non-religious terms (in cultural terms, for example, or in historical terms, or in secular terms), that constitutes an insult to religious people. So, for example, the constitutional category of “ceremonial deism” that is used to describe the phrase “In God We Trust” on money, or the phrase “under God” in the Pledge of Allegiance, is said to be deeply offensive to religious believers. Similarly, the description of the crucifix by Italian judges in the Lautsi v. Italy litigation as a symbol of national historical importance is said to cause hurt feelings among Catholics. By describing (or perhaps defining) a symbol in cultural or historical terms, the government thereby appropriates and degrades the symbol in the eyes of religious believers–and it’s “their” symbol, after all–draining it of religious content. One can see strong traces of the claim and the sense of indignation and insult in Justice Thomas’s concurring opinion in Van Orden v. Perry: “Telling either nonbelievers or believers that the words ‘under God’ have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like ‘God’ are not vulgarities for which the shock value diminishes with each successive utterance.” This argument from insult certainly is understandable and it resonates with many people, including some of my friends.

But not with me, I’m afraid. If anything, I find the argument itself insulting. The argument assumes that religious people are so thick-headed, or so culturally illiterate, or so confused about the nature of their faith and its symbols’ meanings, or so hyper-attentive to the government’s activities, or so insular, parochial, and unsophisticated, that they cannot understand the difference among (a) a cross that is displayed in a church; (b) a cross that is displayed at a cemetery; and (c) a cross that is displayed as a Halloween joke. Who doesn’t understand those differences, and the differences in meaning that they convey? Who is confused? And is not the imputation of confusion, hurt feelings, and cultural simple-mindedness itself offensive? Those poor hayseed religious believers, bearing the psychological cross of their egg-shell sensitivities about their symbols! To argue that any act of the state–least of all its display of a cross at a war memorial or some statement about God on money or in a secular national pledge–could adulterate what a religious symbol like the cross means to Christians is to make a very unflattering claim about the strength with which those Christians believe, about the quality of their intellectual awareness and cultural acumen, and about just how little it takes to shake them up and distress them.

The argument also assumes that a government’s decisions about a symbol really command, and ought to command, the attention of the religious. But what difference should it make that government “degrades” a symbol like the cross? Does the government have the power to degrade the Christian meaning of the cross? Do we look to the government to define the Christian meaning of the cross? That meaning is not the government’s to define! To fret about state-sponsored religious degradation is implicitly to acknowledge the state’s authority in an area where it has none. That the government (or anyone else, for that matter) may use a symbol for secular purposes of its own should do nothing to trivialize the Christian meaning, or to destabilize religious commitment or religious understanding, unless the suggestion is that the religious commitment runs no deeper than attachment to the symbol’s secular meanings. Brand dilution may work for trademark law, where all symbols operate and compete at the level of the profane market, but it has little place here.

But as I say, it is difficult to tell someone not to feel hurt or insulted. I can certainly understand the sense of insult at a perceived usurpation of a religious symbol, but it is not a feeling I share at all when the Supreme Court trots out such coarse euphemisms as “ceremonial deism” to justify and explain the sorts of secular uses of religious symbols and religious language that date back at least to the late Roman empire. For myself, I am more offended by what the arguments from insult imply about religious believers’ savvy and understanding of the world, as well as of their own beliefs.

All of that, I suppose, is to return to the beginning, and to repeat my view that feelings of insult and offense are unsound grounds for constitutional law.

[Image: Delaroche’s “Charles I Insulted by Cromwell’s Soldiers”]