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Sapere aude - dare to be wise
Friday, December 12, 2003
Posted 6:17 PM by Joshua Claybourn
Professor Jeff Cooper has penned the following essay offering the "Other Side of the Tree" regarding the controversy that has gripped the school in recent weeks. Professor Cooper is the operator of Cooped Up, a weblog in hibernation, and teaches civil procedure, evidence, and product liability. He offered advice and constructive criticism during the birth of this blog, and is considered by many to be a star of the law school. We thank him for his input on this discussion.


The Other Side of the Tree

Ten days after a Christmas tree was removed from the law school's atrium, and more than a week after a larger and more elaborate display--one including an evergreen decorated with lights--was erected in its place, most students have moved on to more pressing concerns, namely their final exams. The story continues to occupy the media, however. Stories have aired on the local nightly news each of the last two nights, and yesterday evening a local radio host took it upon himself to lead a protest: for a half-hour at rush hour, a small parade of vehicles circled the law school, honking the rhythm of "Jingle Bells," bearing signs that read "Honk if you love Christmas trees" and "Happy birthday, Jesus."

I've found the entire event disheartening. I was, I confess, mildly irritated when I first saw the tree on the morning of November 26 (part of that irritation was prompted by the fact that those who put up the tree hadn't even waited until after Thanksgiving to do so). I was apprehensive when the tree was removed, because I knew that a backlash would surely follow. And I was dismayed by the scope of the reaction, which has included hate mail and hateful phone calls (mostly if not entirely from people outside the law school community) directed at the Dean and at Prof. Roisman, the most prominent person to protest the tree's placement.

Perhaps the most common response to the controversy, though, has not been anger but bewilderment: how could anyone genuinely find a Christmas tree in the law school objectionable? At the risk of extending the controversy, therefore, let me attempt a response to some of the more common statements I've heard and read:

1. There was nothing illegal about putting up the tree. Christmas is a largely secular holiday, and the Christmas tree is a secular symbol of that secular holiday.

There's no question that, at this time and place, Christmas has some secular aspects to it. The onslaught of mass commercialism to which we are subjected every December finds no basis in the text of the New Testament. The Christmas tree itself is not Christian in origin; rather, it is a pagan symbol that Christians adopted as the religion spread. What's more, many of those who exchange Christmas gifts, and who have Christmas trees in their homes, are not active churchgoers. In Allegheny v. ACLU, 492 U.S. 573 (1989), Justice Blackmun (a Christian) wrote: "The Christmas tree ... is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas." That portion of the opinion (which considered whether a menorah, placed in conjunction with a Christmas tree, violated the Establishment Clause) did not command majority support; even if it had, the quoted passage would have been dictum, not essential to the issue before the Court, as there was no challenge to the presence of the Christmas tree itself. The Seventh Circuit has held, however, that a government entity may place a Christmas tree on government property (and exclude other displays) without violating the Establishment Clause, and my reading of the Supreme Court's Establishment Clause jurisprudence suggests that, if squarely presented with the issue, the Supreme Court would probably reach the same conclusion.

But the fact that the tree seemingly could legally have been placed in the law school atrium does not mean that it should have been placed there. Christmas may have secular aspects, but as a secular holiday, it's a peculiar one: almost all of those who celebrate Christmas are either Christian or have Christianity in their family backgrounds. Most Jews do not celebrate Christmas, even in its nominally secular aspects--some do, but the vast majority do not. I daresay most Muslims do not celebrate Christmas, nor do most members of other faiths. For members of minority faiths, a decorated evergreen tree at this time of year is unmistakably a Christmas tree. It is not a holiday tree; it is not a winter solstice tree. Whatever the practice's origins might have been, the tree is now inextricably linked with Christmas. And Christmas is a Christian holiday.

Many Christians, and many with Christianity in their backgrounds, have trouble understanding this perspective, I think. Certainly, the responses to the tree's removal from the law school atrium suggest this. It is natural for members of the majority culture to assume that their perspective is just right, and that anyone who persists in a different perspective does so only out of stubborn contrariness. As a white male, I'm familiar with the feeling. But the fact that members of the majority have grown up with Christmas trees every December does not make the Christmas tree a natural or neutral part of the early winter season, and the fact that members of the majority have trouble understanding how a Christmas tree could be perceived as divisive or exclusionary does not mean that those who do find a Christmas tree in the law school atrium exclusionary are wrong.

2. This whole thing is the result of one professor's actions.

Prof. Roisman has acknowledged that she urged the Dean to have the tree removed. But the fact that hers is the name most closely associated with the tree's removal does not mean that no one else objected. And, given the anger that's resulted from the tree's removal, it is certainly understandable that students who went to the Dean might be reluctant to come forward and be identified publicly with taking down the original tree.

3. Students should have been consulted before the tree was removed

I agree. Students form the majority of the law school community, and the large majority of them celebrate Christmas. Given that the placement of the original tree was almost certainly legal, the question then became what ought to be done, not what must be done, and in making that judgment, in this instance student opinions should have been considered. Since the tree was already up, more students were likely to be upset by removal of the tree than by its continued presence, my own view is that it would have been best to leave the tree in place for this year, or (if it was to be replaced) to leave it in place until the new winter display was ready to be installed.

But it's worth considering as well how the tree came to be placed in the atrium in the first place. (The following is hearsay, albeit multiple-sourced hearsay). My understanding is that last year, after members of the administrative staff placed a Christmas tree in the atrium, the Dean asked them not to do so again this year without first consulting him. No such consultation took place. Instead, on the morning before Thanksgiving, with the Dean out of town, members of the administrative staff once again erected their tree. No faculty were consulted, to my knowledge. Certainly, no non-Christian faculty were consulted.

There was, in other words, no collective decision to erect the tree; instead, members of the administrative staff took it upon themselves to decorate a space that belongs to the entire law school community for their own purposes. I don't attribute to them any ill will. But it would have been better if they had considered other voices before purporting to act on behalf of the whole law school community.

4. Instead of taking down the Christmas tree, why not just add a menorah, or whatever else anyone wants? The more, the merrier.

This is a tricky one, because the debate over the tree was largely about inclusion vs. exclusion. Wouldn't adding symbols from other faiths be more inclusive than removing the display altogether?

Let's start with the menorah. It's become rather a tradition, in some parts of the country, to toss a menorah into a Christmas display as a token of inclusiveness. But, like many Jews, I'm ambivalent about the menorah's widespread inclusion in holiday displays. Hanukkah is a minor holiday in the Jewish calendar; adding a menorah to the display fin the law school would simply reinforce the notion, already widespread in the non-Jewish community, that Hanukkah is "the Jewish Christmas." That's a label that distorts both Hanukkah and Judaism generally.

Moreover, the addition of a menorah would still exclude Muslim students, Hindu students, Buddhist students, and members of other minority faiths, as well as those who follow no religious tradition. Could they be included in the display as well? Some faiths, I strongly suspect, do not have seasonally appropriate symbols that could be included in the display (when I made this point in a discussion with some of my students, one--a member of a non-Christian faith--nodded vigorously). To tell them that if they want to be included, it must occur according to the dictates of the Christian calendar, does not send an inclusive message; rather, it reinforces the minority faiths' subordinate position. Should members of minority faiths then be allowed to decorate the atrium according to their own holiday calendars? And what of atheists and agnostics--how and when are they to be included? One of last night's protesters (not a member of the law school community) suggested that people should be able to put up whatever they want. But the law school's atrium is not a public forum; it belongs to all of us, but we are not each free to make whatever use of it we see fit. And I don't think that the law school's sense of community would necessarily be improved if that were to change.

5. Prof. Roisman is the Grinch, and she's trying to steal Christmas

I've seen the Grinch metaphor repeatedly invoked in the discussions about the tree. And as a confirmed Seussophile, I must say that I don't find the metaphor particularly apt. The Grinch, Dr. Seuss tells us, "hated Christmas"--for no apparent reason, although the most likely cause was that his heart was "two sizes too small." Those non-Christians who would prefer not to be confronted with a Christmas tree in the law school atrium, however, don't necessarily hate Christmas. Indeed, I can state this affirmatively: the ones I know don't hate Christmas. It simply isn't their holiday; it doesn't speak to them. And at a time of year when Christmas decorations are ubiquitous, in public as well as private settings, they (and I) would prefer that the law school be respectful of all its members, not simply the majority. That's hardly a grinchian sentiment.

The metaphor fails in other ways as well. Dr. Seuss begins his tale by telling us: "Every Who down in Who-ville liked Christmas a lot." But, as I've already noted, the law school community is not a homogeneous Who-ville; we are not uniform in our regard for, or observation of, Christmas.

But most importantly, I think, the use of the Grinch metaphor misses the entire point of Dr. Seuss's story. In the end, after the Grinch has removed every last decoration, has stuffed every last present and every last tree up the chimbley, has taken all the Who-pudding (and even the last can of Who-hash), he returns to the top of Mt. Crumpit, eager to hear the Whos wail and moan at their loss. And of course he is disappointed--because to the Whos Christmas doesn't reside in the lights, in the decorated trees, in the presents. It resides in the heart, in the fellowship of those who believe and celebrate. The Grinch isn't won over by protests; he is not won over by confrontation. He is won over by love.

Alas, the tree's removal has prompted many harsh words, more than a little confrontation, and little of what I thought was supposed to be the spirit of the season. And the result is that members of minority faiths (and those who adhere to no faith) are left feeling even more isolated, even more devalued, than they did when the tree was first erected.

I am grateful to the folks at Sapere Aude for allowing me to post here. I admire the work that they have done, both here and in the classroom; while we sometimes disagree, we have always been able to do so with good humor and mutual respect.

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