Christmas Presence

"No holiday season is complete, at least for the courts,
without one or more First Amendment challenges to public holiday displays."

This was the wry observation in December 2004 by the United States Court of Appeals for the 2nd Circuit, called upon to decide a case pitting Andrea Skoros, a mother of two public school students, against the New York City Department of Education. Only three out of 127 pages of the decision are available on-line; a pdf error message prevents further reading, and the error has never been corrected. The Second Circuit web site seems to be particularly vulnerable to such errors. But the details hardly matter.

There is a reason that Christians have, for many decades, been uttering the slogan "Put Christ back in Christmas." Jesus Christ did not have a particularly prominent role in early American observance of the Christmas holiday. Our earliest models of piety in government, the Pilgrims and Puritans, forbade observance of a Christmas holiday. From 1659 to 1681, the law in Massachusetts Bay colony imposed a fine for observance of Christmas "by abstinence from labor, feasting, or any other way."

The Anglican church observed an Anglican mass for Christmas. Many Anglicans ONLY went to church for this special occasion, or perhaps also for Easter. Roman Catholics celebrated Christ Mass; that is where the name Christmas comes from. Accordingly, Baptists, Congregationalists and Presbyterians remained hostile to observance of the holiday, until well into the 19th century, long after the American Revolution. Methodists were all over the map, coming out of the Anglican church, but in America often converted directly from unbelief in emotional mass revivals during the Great Awakening. For strict Methodists, celebrating the Christ Mass was as sinful as playing cards or dancing the Virginia Reel.

Whatever Christmas is, it does not fall on any likely birth date for Jesus. Mary's baby boy may have been born in April or August (more likely times of year for shepherds to be watching their flocks by night in Palestine). The date of Christ Mass was timed by the fathers of the church, after becoming the official state church of the Roman Empire, to pre-empt the pagan Saturnalia. As missionaries moved north to convert the pale-skinned, blond-haired, blue-eyed barbarians of northern Europe, it also scooped up the midwinter festivals and co-opted the Yule logs.

Dutch families of the Reformed Church, and German Lutheran immigrants, brought to America their own traditional celebrations of Christmas, supplying America with "Sinter Klaas" and the Christmas tree. But no state recognized a Christmas holiday until 1836, roughly the 60th anniversary of American independence. Congress made no act recognizing the holiday until 1870. Sometime in the 1840s, a committee of New York businessmen got behind making the holiday a major annual event. Why? To boost sales of course. Our current orgy of gift giving, not to mention returns and exchanges, was not a thoughtless byproduct. It was the original motivation for the holiday as we know it.

Eventually, most churches caught the spirit of the great national civic celebration. If the stores rendered themselves profitable off of Christmas, the churches certainly found it appropriate to get in a word or two about Christ. Special services for the holy day, which were once explicitly rejected, became commonplace. In recent years, church choirs have even been known to come downtown singing spiritual carols in the midst of the secular holiday sponsored by the chamber of commerce. (They have a constitutional right to do that, as long as the celebration is held in the public square).

Many of our modern Christmas customs came from devout religious observance in one century or another. (Jesus was not born "amid the winter snows," but the English carol is a beautiful icon). As far as American observance is concerned, celebration that the Messiah is born, and God reconciled to a sinful world, is a late-breaking add-on to feasting, buying, and extended vacations. For that matter, Hannukkah was not such a big deal in traditional Jewish communities, until American Jewish immigrants sought for a way to join the American civic holiday season. These religious observances do add a certain significance to the whole exercise.

Why Did We Vote on This?

Wednesday Morning Quarterbacking about Marriage

I've got to hand it to Arizona. They had the common sense to say no. Wisconsin may be the first state to adopt a constitutional amendment concerning the definition of marriage, with less than 60% voting in favor. That distinction pales by comparison. We are seeing the first hopeful signs that sanity may yet return to this hysterical debate. Two older women passengers on the Milwaukee paratransit system gave the best spontaneous insights into the insidious amendment proposal:

"If God said it, we don't get to vote on it. So why are we voting on it?"

"This is too confusing. There has to be some purpose they're not telling us about."

One transparent purpose they didn't openly mention in Wisconsin failed to come true. The amendment was not the wedge for a Republican sweep of the elections. Voters split their tickets in all kinds of ways, with great sophistication. One congressional district even tipped to the Democrats. A fair number of people who voted "Yes" seem to have voted AS IF the referendum were a simple question: "Is marriage the union of one man and one woman?" That would have gotten about a 70% yes vote. It is not what the legislature presented to the people for ratification.

Still, it is odd that those who claim to know what God ordained wanted us to vote on it!. One might have expected those who claim marriage can mean anything we want it to mean to push for a vote. It is strange that so many pastors and churches thought it worthy of their attention. There has never been a time when any political body was so anxious to pass a constitutional amendment to provide that things are going to stay the way they are now. Nor has there been a time when opposition was so aroused on the ground that if the amendment is voted down, nothing will change. For its stated purpose, it would have been hard to write a more twisted and uncertain set of sentences. There would have been no harm in sending the whole thing back to the drawing board until the authors could get it right.

But the most dangerous thing about the rash of state constitutional amendments on this subject is that it takes the courts off the hook. Paranoia about "activist judges" inspires many to nail the absurd debate about marriage into an airtight coffin, without bothering to drive a stake through the heart of the controversy. Yes, the famous ruling by the Supreme Court of Massachusetts was ridiculous. But no court, no state attorney general, nobody from Liberty Counsel or American Center for Law and Justice, has come close to dissecting what the court's error really was. Instead of doing the hard work of clearing the air, everyone is looking for airtight compartments to seal off the real questions that remain unresolved.

It is a general and accepted practice in drafting legislation, and in legal reasoning, to begin by defining the terms of the controversy. There is no case on record where any judicial opinion began by defining the term "marriage." Advocates of expanding the definition have cleverly made the definition the end result of their argument, rather than addressing it at the beginning.

If any judge began by looking the word up in a standard Webster's dictionary, or in Black's Law Dictionary, every available definition would focus on male and female. On that basis, a court could examine with some clarity whether any individual man or woman has been denied equal protection of the laws. The answer would be, no. No male, and no female, has been denied equal access to the status of marriage. The fatuous claim that homosexuals are a "class" of persons who are "excluded" from a deliberately undefined status, vaguely referenced as "marriage," would fall flat on its face. Homosexuals are not a class at all. Marriage laws take no notice of such a condition – unlike skin color, race, nationality, religion, etc. Throughout history, thousands of "homosexuals" have been married in the traditional sense – to individuals of the opposite gender.

Some individuals simply do not desire to enter into the historically constituted partnership known as marriage. They desire to enter into other partnerships. So be it. Those partnerships are what they are. However loving, they are not marriage. And, as anyone looking at it from a Judeo-Christian tradition would recognize, they do not reunite the Adam. They do not bring together the two parts into which the image of God was divided. (Courts in the United States cannot make rulings about the image of God. It is outside their jurisdiction. Spiritual matters are protected by the First Amendment from the profane hand of the civil magistrate.)

This needs to be presented to the courts, stripped of the obfuscation wrapped around most arguments submitted so far. The courts need to clean up the controversy. It needs to be settled, not walled off behind hasty constitutional amendments. Good arguments and bad arguments need to be laid out, examined, publicly displayed, and thoroughly recognized for what they are. No short cuts. So far, the best arguments have not even been submitted to a court of competent jurisdiction.

Once we settle that marriage is marriage, and nothing else, there is no reason we cannot provide by law for individuals to make and register their own choices for hospital visitation rights, joint ownership of property, shared obligations for children. There is no reason for the government to take any notice of the motives. There is no reason the community as a whole must formally acknowledge or celebrate individual choices that deviate from the norm for the human race, any more than we need to persecute such deviations. It simply isn't a marriage.If the Metropolitan Baptist Church wants to celebrate such partnerships as a marriage, they have a right to do so. The Southern Baptist Convention is under no obligation to do likewise. That is called free exercise of religion.

Overcoming Disabilities With Discrimination

This is Part II of We Must Discriminate, dealing specifically with how we do a tremendous disservice to our fellow citizens with disabilities when we blindly refuse to discriminate, or rather, to design services with appropriate discrimination for those who have disabilities .

There has been something of a scandal in Wisconsin lately concerning extremely unsanitary and unwholesome housing conditions for people with cognitive disabilities. The title "Mental Health" is still somewhat used with regard to social services for this group of people, although the term "mental retardation" is out of fashion. This sort of scandal pops up now and then, here and there, throughout the country. After some horrified and horrifying headlines, everything goes back to normal (horrible) until the next round of publicity. That is what we get for turning over this vulnerable population to the tender mercies of the social work profession. (Social work has been an abomination ever since it became "gummint work.")

The root of the immediate expose in Wisconsin lies in a lawsuit filed many years ago, which established the legal and civil right of people with mental disabilities NOT to live in institutions. Its practical effect was to empty out the "asylums" which existed at the time. The lawsuit was filed by, and on behalf of, residents of large, centralized institutions who had most of their mental faculties, plenty of individual initiative, and were tired of living a tightly supervised existence that some social worker thought would be good for them. Of course other residents of those some institutions were totally unprepared for any kind of real world responsibility. They very badly needed an "asylum" in the best sense of the word. The lawsuit failed to discriminate between different types and degrees of cognitive disability, as did the the institutions which inspired the lawsuit. So do the collection of group homes and other "facilities" in which the supposed beneficiaries of the lawsuit now reside.

The truth is, some people have cognitive disabilities so severe that they don't have the initiative to take one step out of the door of their residence unless someone gives a gentle shove between the shoulders, and then would stand just outside the door until they starved or froze to death if someone didn't take them by the hand and lead them somewhere else. They are now scattered in relatively unsupervised little private facilities, where poorly paid individuals may or may not be taking good care of them.

Other people have such mild cognitive disabilities that they could cook and clean for themselves, decorate their own home, keep a garden, mow the lawn, but shouldn't be allowed to sign legal or financial contracts because some unscrupulous wheeler-dealer would take them for all they own. There are many shades in between. (Unfortunately, "concerned" relatives, social workers, and professional conservators are prone to take such vulnerable individuals for all they own anyway. If nothing else, the conservators' fees eat up most of the estate.)

The social work profession is awfully keen on the "rights" of people with no discernible brain function to "live normal lives." On the other hand, these eager busy-bodies are just as enthusiastic about bursting into the private homes of elderly people who are doing very well, living the way they want, making their own choices. Social workers are all too ready to make arrogant, peremptory judgments that such elderly couples, or individuals, need "protection" and must have a "conservator" who will sell off their homes and stuff them in an assisted living unit somewhere. (For their own good, of course.)

The truth is, we need to approach the whole subject of cognitive disability with a great deal of discrimination.

Our laws need to be tweaked a little more strongly toward leaving people alone, who have lived independently all their lives. If a legal adult remains capable of saying "this is my home, I'm doing just fine, get lost," that wish should be honored. There should be a very high burden of proof on anyone (blood relative or not, possessing an advanced social science degree or not, police officer or not) who wants to step in and "help." Help is something to be offered when it is ASKED for. Likewise, IF a court action is initiated at all, the presumption should be that anyone who can get up in court and say "I'm doing just fine on my own, get these nosy busybodies off my back" is capable of exercising independent judgment, until proven otherwise.

At the other end of the spectrum, individuals who cannot select food for themselves, cannot go to the bathroom by themselves, cannot read or write, and demonstrate a marked preference for sitting on the floor all day doing nothing, need to be in a stable environment where someone is being paid for an 8-hour shift to take care of them. They do not need to be living "in the community, just like the rest of us" because they are NOT just like the rest of us. They do not need to be in poorly supervised "group homes" where they can most easily be taken advantage of. They do not need to be stuffed onto buses every day to ride to day programs so they can share the joys of the daily commute experienced by suburban business executives. They need to be in bright, cheerful institutions where they don't have to deal with a lot of confusing changes in their routine, and where there can be frequent, efficient supervision of their care.

What about those in between? That is where we REALLY need to DISCRIMINATE. What one individual needs is very different from what another individual needs. Putting two individuals in the same program is doing a slight disservice to each. There may well be at least ten different categorical levels of disability needed to even come close to giving each person their due. But if we really care about people, as opposed to being enamoured of pet theories, we need all those different varieties and levels of programs, offering the many different options that are each appropriate for some of the individuals who have cognitive disabilities. There is no such thing as one size fits all. Therefore we must discriminate.