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.
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The Legal Satyricon 
my kids are not remotely christian. yet we managed to have a tree every year till last. even went to cut our own 20ft tree in a blizzard one year. I think it has become clearly a secular and commercial symbol in this context. are you worried about reindeer and elves as well?
I don’t really think that the language “marketed as a Christmas tree for holiday use” is of constitutional significance. The primary purpose here is pretty clear–sell trees.
“[T]he Christmas tree, whatever its origins, is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche, which depicts the holiday’s religious dimensions.”
Allegheny County v. ACLU, 492 US 573, 633 (1989) (O’Connor, J., concurring).
I can see a lot of companies marketing “Festive Trees” this year…
The Christmas tree “tax” is another misunderstood proposal. The tax is a small fee — 15 cents per tree — to be used to promote the use of natural Christmas trees. Most growers in favor of it said they did not intend to pass the costs to consumers, but even if they did, 15 cents would be an insignificant portion of the tree’s price. In any case it is the equivalent of other assessments that agricultural commodity producers like pork producers, beef producers, milk producers pay to create a fund to promote their commodities. Tree growers asked for this tax so they could promote the use of natural Christmas trees; I guess they’re tired of losing market share to artificial trees. It was first proposed by the growers late in the Bush administration. Until recently the controversy was only among growers.
To call a Christmas tree a religious symbol because of its association with Christmas is uncommonly silly, and one is tempted to consider such an characterization as willful confusion. As Tim wrote before, the Christmas tree is widely viewed as a secular symbol. Moreover, it has no significance or symbolism in Christianity, and its origin is commonly date to the 15th Century. There are many items and traditions associated with Christmas that have no religious significance such as wreaths, candy canes, poinsettias, and stockings.
While associated the two are associated, Christmas has always had a fraught relationship with Christianity because the holiday’s non-Christian associations and lack of biblical basis. The Bible does not give the exact date for Christ’s birth. Also winter solstice celebrations occur around December 25, and these predate Christmas. Many non-Christians celebrate Christmas. Of course, the orgy of eating, drinking, and gift-giving is a merchant’s dream, and many Christians have worried that this commercialization will swamp whatever religious significance the holiday has. Personally I think it as. Ironically some of the more literalist Christian sects do not accept Christmas as a religious holiday. For example Puritans did not celebrate Christmas.
You think taxing Christmas trees might be covered by the establishment clause, yet I don’t hear you railing against tax on wine, which is, for real Christians, far more symbolic and used in worship.
If Christmas trees are religious symbols then you could not have them decorating your public square.
Think things through before taking a position.
The difference is the Christmas tree tax specifically refers to trees marketed as Christmas trees where the tax on wine apply’s to all wine. A tax on wine would violate the constitution if it were a tax specifically on sacramental wine. But it isnt. It is a tax on all wine. Similarly a tax on all trees would not be a problem. The issue here is that the tax singles out trees used in the celebration of a religious holiday. Also the Supreme Court found that it is permissible to have religious symbols in a public square so long as the government isn’t taking sides. This is why you often see a christmas tree, or a manager scene next to a menorah and perhaps symbols associated with other religions beliefs as well.