The War on Festivus

By Mike Dorf

My latest Verdict column discusses the news that the Florida Capitol now sports a Festivus Pole.  I explain how the Supreme Court's Establishment Clause jurisprudence led to this unexpected result: Because of the legal uncertainty surrounding government-sanctioned religious displays, governments increasingly treat the sites for displays as "public fora" where anyone can make whatever point he or she likes.  (I gloss over the power of government to control the subject matter, but not the viewpoint, of what is said in a so-called "designated" forum for speech.) And once governments open up space to the public, it's hardly surprising that people who object to religious displays on public property would use the opportunity to make that point--by erecting deliberately silly monuments, such as the Festivus Pole.

Predictably, once the story hit the national news, the rightwingoverse went nuts, treating the Festivus Pole as just one more front in the made-for-FoxNews War on Christmas.  Here's a nice account of the FoxNews reaction from Stephen Colbert:

At the risk of stating the obvious, let me just . . . well . . . state the obvious: People who argue that the display of a Festivus Pole in addition to a Nativity scene is part of a War on Christmas cannot really claim to be objecting to the supposed purging of religion from American public life. Indeed, the Festivus Pole is included out of a government attitude that says that anybody can say pretty much anything he or she likes--including mainstream religions, fringe religions and even joke religions. So in treating the Festivus Pole as part of the War on Christmas, FoxNews reveals that, at least in their version of the story, any moves to make our public life more inclusive of non-Christian views--even if they are not accompanied by any exclusions of Christianity from public life--are a threat.  In the guise of fighting a war to defend Christmas, they are actually going on the offensive in their War on Festivus.

Meanwhile, at least judged by one news story I heard, the reactions of the people who actually put up the Nativity scene in the Florida Capitol were much more measured.  I suppose that it's not really my place to give advice to religious conservatives, but in case they're interested, I would urge them to study the reaction of the Mormon Church leaders to the scatalogical but hilarious musical, The Book of Mormon. Members and leaders of the Church of Jesus Christ of Latter Day Saints have been incredibly good sports about the ridicule, perhaps because they realize that there's no way to win a serious debate with people whose prior credits include a musical featuring sex-crazed muppets and South Park.

I'm not sure where the Mormons came upon this bit of wisdom, but it could have been the 1979 debate over Monty Python's The Life of Brian, as excerpted and discussed below:

The idea that Malcolm Muggeridge and Bishop Mervyn Stockwood could win a debate against John Cleese and Michael Palin is, or should have been, so absurd, as to warn the religious duo off of the enterprise.  But even if the actual religious Christians who erect Nativity Scenes are taking the Festivus Pole in stride, FoxNews and the rest of the rightwingmediaverse will not, because outrage over this sort of thing is their brand.  And that outrage will only fuel more Festivus displays.  The War on Festivus will be a long war.