“No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.”

HB278 

As reported in this week’s Light, the Missouri legislature overwhelmingly chose to override Governor Jay Nixon’s veto of this House Bill 278, which is a clever backdoor attempt to prevent limitations on Christmas recognition in public schools and facilities.

There’s no question that this is bad law and bad public policy, intended to protect Christmas celebrations without offering the same cover to other religious observances. The real question is, what will be the outcome of the all but certain challenges to the law?

The statute may or may not prove violative of the First Amendment to the United States Constitution, which has long been interpreted to prevent government from showing preference toward one religious belief over another. In this case, with Christmas being the only federal holiday set aside for those of a particular religious segment, the favoritism seems fairly obvious.

The implication of the bill, then, is that a public school teacher or student, or city hall worker, who wants to display a cross or a nativity scene, or give a Christmas-themed lecture, would be allowed to do so. So unless the law were struck down judicially, a Christian symbol would be on its face kosher (pun intended) because it happens to relate to a federal holiday.

Will this withstand judicial scrutiny? The long and short of it, without a detailed and lengthy discussion of United States Supreme Court jurisprudence on the subject is: Maybe, but if so, it is almost certain that the unintended consequences won’t be what the law’s supporters intended.

Why not? Well, to answer that requires a look at how this will work from a constitutional perspective. The courts (either state of federal, depending on where actions are brought, and make no mistake, they will be brought) will determine whether the treatment of Christmas under the law promotes the “establishment” of a religion under one clause of the First Amendment. If so, then the law will be struck down or interpreted not to be enforceable as to Christmas.

But a court could also say that while the law prevents limitations on talking about Christmas or Christian themes, it does not on its face prevent any other religious celebrations from taking place in public facilities. So a court could then either provide guiding language indicating that those other religious practices would enjoy equal opportunity, or it could decline to address the issue until some person or group tries to bring another religious observance to a public place in Missouri and gets turned down.

What a reasonable court almost definitely wouldn’t say is that Christmas gets special treatment above other religious practices simply because it’s a federal holiday. Because if that were the case, any legislature in any state could simply adopt a holiday for a religious observance and give it special treatment. Such a result would basically obliterate the Establishment Clause. And while some of you may be skeptical, most appellate court judges are smarter than that.

So the result that the supporters of HB278 will get is likely one that most of them didn’t anticipate; namely, that once Christmas is open for celebration, every single other religious observance is fair game.

We’re not just talking about Judaism, Islam, Hindu or other major world religions. Scientologists may come out of the woodwork. Not to mention Wiccans and pagans. And don’t forget, satanism is a religion too. Oh wait; the absence of religion deserves equal treatment as well, so anyone who chooses to exercise his or her right to celebrate atheism or agnosticism should be afforded the same level of protection.

This potential mishmash, all opened up because of the inanity of HB278, is likely to waste a whole lot of taxpayer time and money, when the supporters won’t even get the result they seek, which is to elevate Christmas and Christianity above all other religions. If that weren’t really their intent, they wouldn’t have used the bogus trick of tying the statute to federal holidays, of which there is only one that is truly religion specific – Christmas.

While health care, economic development and social justice concerns fall on deaf ears in Jefferson City, the majority continues to focus on rhetorical trickery to try to further its disrespectful religious bias. The bullying nature of this kind of law cannot be overstated. HB278 is terrible law, and we hope it is judicially overturned at the earliest opportunity.