Topic category:  Other/General

A bus driver wearing a furry red-and-white hat and driving a bus for a bus company serving a public school, a religion does NOT tend to establish.

That bus driver has a right to wear a furry red-and-white hat.  A student who does not like it cannot be forced to wear one but cannot force the bus driver NOT to wear one.

So the people who adopted the First Amendment intended.

Being a school bus driver is tougher job these days, due to secular extremist harassment.

In Commack, New York, Kenneth Mott, 65, who resembles Santa Claus, wore a furry red-and-white hat that many people think of as a Santa Claus hat while driving a school bus and a student passenger supposedly bothered by the sight of that hat.

By doing so, Mr. Mott put himself in the cross-hairs (figuratively speaking) of that churlish child, even though Mr. Mott does not pretend to be Santa Claus or play Christmas carols or decorate his bus.

The child's mother complained to Baumann & Sons, the bus company for which Mr. Mott shuttled children to Rolling Hills Primary School and Commack Middle School in Suffolk County on Long Island.

The bus company initially sided with the parent and child and instructed Mr. Mott to remove the hat!

Mr. Mott claimed to have worn the hat without complaint during the five years he had worked for the bus company.

Mr. Mott's response: "What, are you kidding me?"

Initially, he thought it was "a big joke."

It was NOT a joke.

Mr. Mott refused to capitulate.

His position: "This is America.  I'm not hurting anybody."

Another Baumann and Sons bus driver, Benedict Pressimone, bought his own Santa hat to wear on his route after he heard the story.

Mr. Pressimone's position: "This is ridiculous.  We have to make a stand."

Mr. Mott told his parents that he might lose job over his hat.

The company flip flopped and told him he could wear the hat after all.

Newsday, Long Island's newspaper, focused on the hat flap.

Predictably, representatives of Baumann and Sons did not return calls for comment.

Commack School District Superintendent James Feltman told the school district's transportation supervisor that Mr. Mott could wear his hat because it is not a religious object, is not distracting to the driver, and didn't interfere with the driver's duties.

Mr. Feltman noted that he had received a call from a parent, in support of Mr. Mott and his hat and called the dispute a misunderstanding of the district's policies.

The district policies permit everything from menorah ties to Christmas sweaters to Halloween costumes.

Mr. Feltman explained: "On Halloween, do we tell teachers and staff and drivers not to wear Halloween outfits? During holidays, do we tell teachers they can't wear sweaters that have Christmas trees?

The dispute apparently is over, but Mr. Mott commented, "They sure took a lot of the joy out of my Christmas."

Santa is also know as Saint Nicholas, but the law treats him as primarily secular and therefore allows the presence of Santa hats and similar symbols in schools during the Christmas season.

Yet there are those who claim that these symbols violate the constitutional ban against governmental establishment of religion.

The New York State School Boards Association has model policies for school districts governing school observances. They allow displays of secular symbols -- specifically including Santa Claus and Easter bunnies -- during relevant seasons.

The basis for the policies is a 1984 United State Supreme Court ruling that Pawtucket, Rhode island, did not violate the Constitution by displaying a creche scene with a Santa Claus house and other holiday symbols in a park within the city's shopping district.

The Supreme Court was divided, but the court's majority ruled that the display had a secular purpose -- namely, to celebrate a national tradition and holiday recognized by Congress.

Warren Richmond, an attorney with a law firm that represents many Long Island school districts., helpfully indicated that a Santa hat could be considered as a rightful act of self-expression: "If a teacher were to wear a pin with a Santa Claus, as I'm sure many people do, I think a teacher has a right to do that."

Sadly, (1) the Establishment Clause has been expanded far beyond the parameters envisioned by the people who adopted the First Amendment and (2) one of the children driven by Mr. Mott is so hostile toward Christmas that he set out to force Mr. Mott to stop wearing his furry red-and-white hat.

The tail is presuming to wage the dog.

And the courts have gone much too far to please the small secular extremist minority, without the First Amendment ever having been amended.

What was the Establishment Clause intended to do?

Before the Civil War, Congress studied the subject. 

After study, the Senate Judiciary Committee issued a report explaining the Establishment Cclause:

"The clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to the establishment which existed in the mother country, its meaning is to be ascertained by ascertaining what that establishment was. It was the connection with the state of a particular religious society, by its endowment, at public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided...."

The report further stated that the Founders were "utterly opposed to any constraint upon the rights of conscience" and therefore they opposed the establishment of a religion in the same manner that the church of England was established. But, the Founders "had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people....They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of 'atheistic apathy.' Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted."

A similar House Judiciary Committee report explained that "an establishment of religion" was a term of art with a specific meaning:

"What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an establishment of religion without all these."

Until the real meaning of the First Amendment's religious clauses is respected, secular extremists will continue to try to "spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of 'atheistic apathy.'"

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.