Bill O'Reilly has been tossing and goring Gov. Gregoire of Washington state. The reason for his welcome war on the super-left, supercilious Gregoire is the rude screed she sanctioned alongside the traditional Christmas display of the Nativity scene in the state capitol building.
Christine Gregoire allowed impolite atheists to flank the baby Jesus with a placard that read: "There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds."
Fox New viewers have since deluged the governor's office with angry phone calls – 200 an hour. So far so good. Bully for Bill.
But then Gregoire briskly disposed of Bill. In response, reported the Associated Press, the Democratic governor deferred to the U.S. Supreme Court, which has "been consistent and clear that, under the Constitution's First Amendment, once government admits one religious display or viewpoint onto public property, it may not discriminate against the content of other displays, including the viewpoints of nonbelievers."
Bill might have won the battle, but he lost the debate. Why? Because O'Reilly fiddles with the icing rather than the cake:
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He defends the country's founding faith on the frivolous grounds that it is a federal festival like any other – an "uplifting tradition … where peace and love are the theme of the great day." The substance of O'Reilly's claim against those who'd disrespect a Christmas display is: "Be nice, because Christmas is nice." And because the feds have told you to.
Having defended Christmas as a lawful, public holiday, logical consistency then compels O'Reilly to stick up for every foul federal holiday, including Martin Luther King's dedicated day. This he duly did, even going so far as to suggest that atheists apply to have their own, federally approved, winter solstice celebration. Until such a day, however, Bill vowed to banish them from the public square.
This is the country's founding faith O'Reilly is talking about; not one among many competing holidays.
And this is O'Reilly's problem. He's forever arguing his case from the stance of the positive law. The "Law.com Dictionary" defines legal positivism as "man-made law, as compared to 'natural law,' which is purportedly based on universally accepted moral principles." Believers call the natural law "God's law"; others, like myself, refer to law derived from reason.
Whatever the case, the natural law is the law O'Reilly seldom defers to.
O'Reilly generally adopts the position that the law is always just because it was arrived at by majority vote. This species of legal positivism contravenes classical natural law theory, as it equates justice with the law of the State.
To follow this reasoning, Hitler's actions would have to be considered legitimate because he came to power democratically. (The Argument From Hitler is tired, I know, but it's the end of the year, and I'm tired.)
A jog through First Amendment jurisprudence will reveal that Grinch Gregoire's ruling is naturally illicit, as does it distort the original intent of the Constitution. First Amendment law has tended to see the injunction against the establishment of a state religion as an injunction against the expression of faith – especially discriminating against the founding Christian faith – in taxpayer-supported spheres. The end result has been the expulsion of religion from the public square and the suppression therein of freedom of religion.
As I've repeatedly written, "sometimes the law of the State coincides with the natural law. More often than not, natural justice has been buried under the rubble of legislation and statute."
If you doubt O'Reilly's defense of the Christmas display was inadequate, consider: If Christmas were not a public holiday, would the atheistic exhibit the uncouth governor authorized be defensible? And if Christmas were not an "uplifting tradition" – O'Reilly's diminishing description – but a sad and somber day, would it not still deserve pride-of-place in state capitols across the country?
It most certainly would. And not because the State designated it a holiday, or because it is a harmless and happy day. Christmas ought to be defended on the basis that Christianity is America's founding faith.
To defend Christian America with reference to un-Christian State law that has all but banished Christianity from the public square is worse than silly.