Let me make one thing perfectly clear (to quote someone from our past): I have nothing against Christmas.

Now that that is out of the way, let’s move onto the United States Constitution. The First Amendment, which says (in part): “Congress shall make no law respecting the establishment of religion.”

Only Congress has the power to create federal holidays under 5 USC Section 6103, and on June 28, 1870, Congress declared Christmas (along with New Years Day, Independence Day, and Thanksgiving Day) a federal holiday, an act signed into law by President Grant.

Today, there are 11 Federal holidays. None of the others has a religious significance.

It seems clear to me that the declaration of Christmas as a federal holiday clearly violates the Constitution, but that – for any number of reasons – its designation has been challenged only sporadically in the courts and never taken to the highest levels of appeal. Certainly, no Supreme Court has ever been asked to rule on the question.

The arguments in favor of constitutionality are, I believe, largely rationalizations, and they go to forcing those supporting the federal holiday to argue that, basically, Christmas is not a religious holiday at all, or that it is a combined religious and secular holiday, and that the secular nature of Christmas overrides its religious origins. In other words, for those of you who deride the commercialization of Christmas: it is only this commercialization that allows it to stand as a federal holiday.

The most recent challenge to Christmas as a federal holiday that I have uncovered was brought in 1999, and dismissed by United States Judge Susan Dlott of the Southern District of Ohio with the following quip:

“An extra day off is hardly high treason, it may be spent as you wish regardless of reason.”

One more rationalization, I fear.

But back in the day, as I understand it from what little Googling I have done, in 1870, Christmas was not even universally celebrated and that, in fact, in this country it was much more a Southern than a Northern holiday and that Grant wanted it to be a national holiday to help ease the South back into the Union. The celebration of Christmas as a religious holiday grew in this country in the 19th century; remember the Pilgrims and other religious sects in this country outlawed the celebration of Christmas. And the pervasive celebration of Christmas as a commercialized holiday did not begin to occur until well after the Civil War into the 20th century.

Obviously, I don’t really know a lot about this subject, although I find it very interesting. Particularly interesting is what today’s Supreme Court would say if a challenge to Christmas as a Federal holiday was before it. I don’t think they would adopt Judge Dlott’s rationale – it is (and I have not read her decision, only the couplet) pretty silly, I think.

The Supreme Court today is an originalist court, right? They look back to what the founders thought when they wrote the Constitution. If they looked at the way Christmas was observed in 1783, what would they find? Would they find it a religious holiday, a secular holiday, or not really a holiday at all? And if they, in their heart of hearts, decided that the founders would never have picked Christmas to be other than a day of religious significance, how would they rule? I can’t imagine that they would declare the designation of Christmas as a federal holiday as being unconstitutional, can you, even if in fact it is?

To repeat: I am not against Christmas. I am not part of the non-existent war against Christmas. So why am I posting this?

Because I think that the Congressional designation of a Christian religious holiday as a federal holiday clearly violates the Constitution, but that it is very unlikely that any court would so declare but would continue to rationalize its acceptability, and that this conundrum is one of the underlying problems we have as a “constitutional” republic as we discuss other, and more important, matters.