For the Love of O'Connor
About 50 protesters took part in Saturday's demonstration, organized by religious leaders. Dick Otterstad of the Church of the Divide donned a Santa Claus costume and greeted shoppers with the message: Don't forget about the meaning of Christmas.Why would someone wear a Santa costume to talk about the religious meaning of Christmas? From what I understand, Santa's message is actually somewhat antithetical to that of Christianity, inasmuch as Claus rewards people for being good and gives them coal if they are bad (considering the price of heating fuel this winter, this may be more helpful to poor families than a bunch of toys would be), whereas Christianity emphasizes that virtuous behavior is insufficient and one must believe in Christ as savior. This confused symbolism seems of a piece with the report that some churches won't be holding Sunday morning services on Christmas, because their parishioners with children are unwilling to interrupt the kids' present-opening. Which I am all about. My mom claims that she didn't celebrate Christmas when she first came to the U.S., but that she would give us gifts instead on a Hindu holiday. Because we bawled about not getting Christmas gifts, Dec. 25 became incorporated into our family tradition.
"It is insulting that Wal-Mart has chosen to ignore the reason for the season," Otterstad said. "Taking the word 'Christmas' out of the holiday implies there's something sinful about it. ... This is a part of our culture."
With that in mind, the O'Connor test of government-sponsored religious displays -- that the religion be thoroughly diluted with secularism -- seems pretty well in step with how many Americans actually think about the public square, notwithstanding how beautifully some folks have gotten the First Amendment governed "public square" of the state muddled with the Almighty Dollar governed "public square" of Wal-Mart & Co. In light of how the centers of shared activities have changed, perhaps we should call it the public strip mall to distinguish it from the public square of courthouses and city halls, and have another term yet for the Marsh v. Alabama commercial centers that have transformed private property into public space.
Indeed, looking at O'Connor's record as a whole, she tends to write opinions that are politically sensible, to use the word "sensible" in two meanings: exhibiting good sense, and having the faculty of perception. O'Connor often is described as a pragmatist, but she also is sensitive to popular intuitions. Her balancing tests, mocked though they are by other legalists, fit well with the layperson's usual notion that there are competing interests, that we should compromise, that every situation is different, etc. These tests may not be easily summarized into a few words, but very little of the Court's jurisprudence seriously can be.* Many people have traced this tendency to her career, which includes participation in more elections than most contemporary justices, plus appointment to Arizona's top court by a governor on the other side of the aisle. And of course, the similarities between this biography and Harriet Miers's were part of what drove the fear that Miers also would end up becoming another moderate on the Court.
* Take, for example, the Make No Law bit of the First Amendment that Hugo Black attempted to take so strictly -- even he felt that some laws regarding speech didn't really impinge on anyone's right. I cannot think of any aspect of the Constitution that does not come with qualifications and explanations, and this probably is not due to being a law student. I doubt that a person utterly uninterested in the Constitution would think that the First Amendment properly is read to mean that Congress may make no law prohibiting the publication of undercover CIA agents' names, because this exception is just "common sense," though it is a prior restraint and not in the text.
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