Thirty years ago, the sad little scuffle now called “Christmas Wars” was about displays on public property. Federal courts were filled with challenges to religious symbols in municipal displays, or demands to include skeptical taunts between Santa and Baby Jesus.
In the past ten or fifteen years, the most virulent cries of outrage have been directed at businesses. Small local businesses and large national brands have one over-riding concern: they want to bring customers in the door. That means they want to be attractive to everyone, and offend nobody. Traditionally, businesses followed the rules recited by a modestly successful North Carolina insurance salesman: “don’t talk politics, don’t talk religion, and don’t sleep with the other guy’s wife.”
The raucous sects, devout and atheist, that provide 95 percent of the “Christmas Wars” rhetoric, have both been hard on business owners and managers. One side denounces the all-inclusive greeting “Happy holidays” and demands “Just say Merry Christmas.” The other side is as angry to see shepherds and angels in a retail store window as they are to see a creche in the city park.
Whatever this person or that person want, the legal standards are wildly different. Limits on official public sponsorship of religious displays are rooted in the constitutional prohibition against government establishing a religion. When a business posts overtly religious displays, that is, by definition, not government action at all. It is, in fact, the business owner exercising their right to freedom of speech, and the free exercise of religion.
Of course, most businesses go light on religious themes, not because they are constitutionally banned from having such displays, but because they want Christians AND Jews AND Muslims AND agonstics, AND atheists AND Buddhists AND Hindus to all feel welcome in their store. Money, as Jesus pointed out, has no spiritual loyalties.
However, a business owner MAY post just about any sort of display they want to, and take their chances on the market. Civil rights laws prohibit a commercial enterprise from refusing to sell to customers because of their race, creed, etc. That is regulation of COMMERCE. It does not extend to regulation of SPEECH.
Of course a home owner, or even a tenant with a decent lease, can display whatever they want on their own property, with all the sacred or secular significance each occupant chooses. And churches remain free to erect purely religious seasonal displays on their own property. That is called “the free exercise thereof.” Not only is there no constitutional ban, such displays are constitutionally protected, no matter how many freethinkers walk or drive past each day.
When it comes to how business employees greet customers, the applicable law is even more muddled. Most states still treat employment as “at will,” meaning an employee can be fired for “any reason or no reason.” Some legal limits have been imposed on that concept over the years. A business may not retaliate against an employee for the employee’s exercise of free speech, but may regulate what the employee says on behalf of their employer while at work.
For instance, if the policy of the business is to say “Happy holidays,” or not to mention the holidays, a retail clerk may be fired for violating that policy. There might be a bit more of a problem if a Jewish business owner required an employee to say “Merry Christmas,” or a Muslim business owner required a Christian employee to say “Happy Ramadan.” That would be putting affirmation of the employer’s religious beliefs in the employee’s mouth.
If a business has no policy, it is entirely up to the individual clerk to say what moves them. In that case, it is nobody’s business to complain. If everyone simply accepted that the clerk is offering the cheer of their own beliefs, to everyone, the quarrel would evaporate. If a Christian clerk said “Merry Christmas” to a Jewish customer, who replied “Happy Channukah to you,” then everyone could go away happy. Only the dour souls with nothing to celebrate would feel left out.