When Even The Dominant Culture Shouldn’t Prevail

Loren Kaye
President of the California Foundation for Commerce and Education

An honest-to-God civics lesson is playing out in the State Capitol. Members of the Assembly should take a moment to refresh their understanding of the Bill of Rights.

During the debate over the Constitution, James Madison wrote to Thomas Jefferson:

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.

Many similar debates among the Founders eventually gave birth to the Bill of Rights, that amazing document that walls off certain liberties from encroachment by government – even if a majority of the public (“the major number of constituents”) believes those liberties should be narrowed.

Thus we protect – sometimes against public opprobrium – marching by Nazis and burning of flags and censorship of news media. We erect a “wall of separation” (Jefferson’s words) between church and state. These liberties are found in the First Amendment.

The “establishment clause” of the First Amendment prevents government from favoring one religion over others – or over none. It is meant to protect citizens, in the words of Justice William O. Douglas, “against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it.”

Which brings us to legislation recently heard in the Assembly Labor Committee, which would require employers to pay their workers double their normal rate of pay on Thanksgiving and Christmas holidays.

While acknowledging the obvious, that Christmas is a Christian holiday, committee chairman Roger Hernandez made a majoritarian case for the prevalence of the dominant culture, implicitly rejecting the case for religious liberty:

In our American culture we do have a socialization that includes dominant cultural practices in our communities. And a big part of that is these two holidays. Whether you’re Muslim, whether you’re Buddhist or Catholic or Protestant, these are days that are enjoyed by people of all – this is not a religious-driven piece of legislation.

But whether this legislation is “religious-driven” is beside the point.

The Supreme Court has held that “a governmental action that unconstitutionally advances religion (involves) governmental practice that either has the purpose or effect of ‘endorsing’ religion.” Justice Sandra Day O’Connor elaborated:

Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

You may argue that the primary purpose of the double pay on holidays legislation is secular (although choosing a religious holiday for that purpose makes even that contention suspect). But its effect is to endorse a Christian holiday, and it compels “adherents and nonadherents” alike to honor this endorsement. As much as a “major number of constituents” – or even a majority of the Legislature – may wish to effect this infringement on religious liberty, it clearly falls outside the bounds of the First Amendment.

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