By Jay Wolman
I’m impressed. The Department of Agriculture may have violated two First Amendment provisions at once. As set forth in the November 8, 2011, Federal Register, there is a new Christmas Tree Promotion Board. I’m thinking–Establishment clause violation, perhaps? But, it gets better. To fund it, there are assessments (i.e. taxes) on Christmas trees. A tax on Christians. Free Exercise clause violation, maybe?
So there’s no confusion:
Sec. 1214.3 Christmas tree.
Christmas tree means any tree of the coniferous species, that is severed or cut from its roots and marketed as a Christmas tree for holiday use.
The USDA does address the Establishment clause question:
Another commenter in opposition raised concerns that the proposed Order may violate the Establishment Clause. The commenter stated that government speech cannot advocate religion or religious symbols. USDA considers Christmas trees to be an agricultural commodity which is reported as such in various USDA crop reports and statistical data reports (e.g. 2007 Census of Agriculture, National Agricultural Statistics Service). The Act in section 512 provides for the establishment of generic promotion, research and information activities for agricultural commodities, including Christmas trees.
I don’t buy it. Just because it may be an agricultural commodity doesn’t mean that singling it out for special treatment doesn’t violate the Constitution. If they left it at “any tree of the coniferous species”, I think they could get away with it. But once they add in the relationship to Christmas itself, therein lies the problem. But for Christmas, there is no Christmas tree tax.
The USDA can regulate cotton, too. But that doesn’t give them the power to make a similar Mormon Underwear Promotion Board, or Muslim Prayermat Promotion Board, or Yarmulke Promotion Board, with an attendent assessment.