My friend Marc Randazza, a First-Amendment attorney, has a sweet piece up at CNN about officially-recognized religious holidays.
I wish the headline were different: “Why Schools Should Observe ‘Day of the Dude'” (a reference to The Big Lebowski) is going to cause lots of people to click through to something less seemingly absurd. In fairness, absurdity is exactly the thing Marc was going for with his argument — in a good way. Follow along:
Schools in New York City have decided to observe two Muslim holidays and close schools for them. After all, for decades, kids have gotten Christian and Jewish holidays off.
But that’s the wrong approach, Marc argues:
First of all, virtually every recognized religion is practiced in New York City. Unfortunately, now only three of them have some kind of “officially acknowledged” status. Christians, Jews and Muslims have their holidays off, but what about New York’s other religions? What about my religion? March 6 has long been “The Day of the Dude,” and as a Dudeist minister, should I not demand respect for my beliefs, by insisting that the school district “take ‘er easy” on that date every year?
By selecting only three “approved” religions for respect, we send the message that we value the beliefs of some over those of others. Such a mentality has no place in a secular country — even if we have a history of recognizing some Abrahamic religions’ holidays.
Because therein lies a theory behind the establishment clause. We don’t rank belief systems here. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court gave us a three-part test to determine whether governmental conduct violates the Establishment Clause: (1) the governmental action must have a secular purpose, (2) it must have a principal or primary effect that neither advances nor inhibits religion, and (3) it may not foster an excessive governmental entanglement with religion. [New York Mayor] De Blasio’s action violates, I think, all three prongs.
So what would have been the constitutionally correct way to go about this?
De Blasio should have used this opportunity to change direction, and state that there would be no official religious holidays — that selecting just the Abrahamic vein of religion as officially recognized by the state is simply improper. This would send the right message — that the government is not going to get involved in matters of religion, at all.
Marc is fine with allowing “cultural days off, or even simply pragmatic decisions.”
For example, in some school districts in New York, 60% of the students were absent on Chinese New Year. The New York State legislature authorized local districts to call off school that day, as a practical approach to empty chairs. Further, it did not improperly send a message that certain religions were valued over others.
I see no problem with kids taking religious days off, if their family’s beliefs require them to. Schools can accommodate that kind of thing as easily as they can accommodate kids who get stuck home with the flu.
I wrote something similar a few months ago, but on a happier occasion: that of the Montgomery County Board of Education deciding to strike religious holidays off the calendar.
Yesterday, I PM’d Marc and asked if he would litigate the matter should the right client come along — a John Scopes to his Clarence Darrow, as it were. His answer was, basically, sure.
“I could see having a Pastafarian — or better, a Hindu — sue to demand inclusiveness. Kinda how the satanists got their Christmas displays in Tallahassee.”
I hope it happens sooner rather than later.