Opinion: Case for the constitutionality of the La Jolla Christmas Parade

Opinion / Guest Commentary / Our Readers Write:

Every year for the past 60 years, the La Jolla Christmas Parade has taken place. And every year, it seems, some group attempts to repackage the event by proposing a more anodyne, faith-neutral name. These individuals normally make a straightforward argument: affiliating the name Christmas — a specifically Christian holiday — with a government-sponsored event violates the First Amendment's Establishment Clause. This argument is wrong for two reasons.

First, it simply isn't true that the mere mention of the name Christmas violates the Establishment Clause. Context is hugely important.

And second, the history and tradition of the challenged action must always be taken into account in determining the constitutionality of these issues.

The U.S. Supreme Court has on several occasions noted that the Establishment Clause is not violated by a mere confluence of government and religion. The question, according to the Supreme Court in Marsh v. Chambers, is whether the challenged behavior — that is, prayer or the use of the word Christmas — can coexist with the principles of disestablishment and religious freedom.

In other words, is allowing a prayer to be said at the beginning of a legislative session, or allowing a government-sponsored Christmas parade, an attempt to proselytize or to coerce? If it's not, then the court considers the other side of the coin: the Free Exercise Clause. Individuals have a right to express their religion, so a government policy that disparages religion in the name of upholding the Establishment Clause would, in practice, conflict with the Free Exercise Clause. The context of the challenged behavior, then, is critical.

In the case of the La Jolla Christmas Parade, it's "Christmas" only in name. There is no attempt to proselytize or to coerce individuals into joining Christianity. Indeed, the event is marked less by religious contemplation than it is by bonhomie; and, in point of fact, most of the floats in the parade have secular overtones. Those claiming exclusion would therefore have to demonstrate how this free event open to all keeps them from participating, either physically or psychologically.

Moreover, those proposing a faith-neutral designation ignore the long history and tradition involved in these events. Religion and religious traditions have played a strong role in our nation's history, said the Supreme Court in Van Orden v. Perry, and this history is almost always relevant in determining the constitutionality of a challenged action. Many of these parades, the roots of which stretch back to the Roman religious rites that honored the gods, have been present in the U.S. in some form since the 1880s. Again, individuals have a right to the free exercise of religion, and any governmental bias or hostility to religion could undermine the very neutrality the Establishment Clause requires.

Here, having the City of San Diego eliminate all references to Christmas could be seen as evincing an impermissible hostility to religion in general, thus implicating both the Establishment Clause and the Free Exercise Clause.

The best course of action for the City, therefore, is to recognize not only the rights of those who want the "Christmas" Parade, but also to acknowledge the long-standing and deeply embedded nature of this annual tradition. This reliance on tradition is, as the Supreme Court repeatedly has reminded us, not a hidebound or retrograde approach to these issues. Rather, it is viewed judicially as an acceptable way of giving meaning and detail to the "majestic generalities" of the Constitution.

To be sure, in a constitutional democracy, certain subjects are properly understood as being withdrawn from the ebb and flow of political forces. They depend, as Justice Robert H. Jackson famously said, on the outcome of no election. But in the case of "Christmas" parades, those endeavoring to keep the name Christmas point not to majoritarian politics but to the Constitution itself. Likewise, those wanting Christmas removed also point, quite sincerely, to the same provisions of the Constitution. At some point, then, the judiciary will have to render a decision.

But with respect to the La Jolla Christmas Parade, at least, there is one compelling conclusion: The history and tradition involved are not, constitutionally speaking, irrelevant. Indeed, any judge determining the fate of the La Jolla Christmas Parade will, as a matter of law, be guided by the long history involved. And that represents, for proponents of the status quo, one major arrow in their quiver. As Chinua Achebe, the great African novelist, once said: "When a tradition gathers enough strength to go on for centuries, you don't just turn it off one day."

Editor's Note: James P. Rudolph is an attorney with expertise in constitutional law. He was born and raised in La Jolla, is part of the Harry's Coffee Shop family, and sends his children to grade school in La Jolla. In December 2016, he wrote an op-ed for The San Diego Union-Tribune, and has requested the La Jolla Light reprint it here.

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