This time of the year is when Americans celebrate their religious foundation. The overwhelming majority of Americans are Christian and celebrate Christmas, the most important day on the Christian calendar. Jewish Americans celebrate Hanukah, which commemorates the victory of religious liberty over pagan authoritarianism.

Sadly, in the year 2016, religion finds itself under unprecedented assault in a nation founded upon the Judeo-Christian tradition, and, in the words of Sam Adams, a nation founded as the last “asylum on earth for civil and religious liberty.”

In just one generation, we have gone from a nation that downright fosters (but doesn’t coerce) religious virtue to a nation that doesn’t even tolerate religious adherence deeply rooted in our history and tradition with one’s own private property. How did we drift from the sentiment of our very first president — that it is impossible that “morality can be maintained without religion” — to the expungement of all public religious symbols from our public places? How have we deviated from the days of Madison when conscience was regarded as “the most sacred of all property” to having no conscience or property rights?

A more secular culture should not engender political paganism

There is no denying the fact that, unfortunately, American culture itself has become much more secular, even ignoring the secular trends in our body politic and legal structure. That the fabric of our society as a whole will be more secular than it has been since our Founding is already a reality. But that pagan ideals should become the law of the land and enshrined into our Constitution and legal structure is not a logical or imperative outcome of a relatively more secular society. It is the result of coerced debauchery from a secular judicial theocracy that has legislated immorality from the bench.

In other words, we might be far from the days when a majority of people unflinchingly understood the truth expressed by Justice Joseph Story that “Piety, religion, and morality are intimately connected with the well-being of that state, and indispensable to the administration of civil justice.” However, that doesn’t mean our society supports the legal profession’s effort to banish all religious references and monuments from our state, redefine the Constitution and marriage for all 50 states, and promote transgenderism. And it most certainly doesn’t mean that most people support the notion that private citizens should be coerced to violate their conscience with their own property or business.

Yet, even those who officially try to abide by God’s word and support the Constitution as it was originally conceived have become so diffident in our own views that we needlessly acquiesce to the most radical agenda items of the cultural Marxists under the false pretense that the transformed society supports and even demands such change. It is this inferiority complex and a false sense of defeat among the religious community in this country (along with phony Republicans supposedly representing them) that has allowed the Left to win 50-year culture wars overnight without firing a shot.

It’s not just that social conservatives won’t even fight in any meaningful way for social conservatism. Instead, social conservatism itself is long gone. By social conservatism, I mean the principles expressed by people like Benjamin Rush that “the only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.” Or the truism of Sam Adams that “Religion and good morals are the only solid foundation of public liberty and happiness.”

No, Allah forbid anyone within the Republican Party to ever stand for such things in this day and age. But one would at least expect them to fight for social libertarianism and the preservation of natural law, federalism, and governance by the consent of the governed. We don’t even have enough people who care to fight for the right of private individuals to worship according to our founding beliefs.

The shocking indifference following the 2015 Supreme Court massacre

It’s been 18 months since Obergefell, when the court redefined the building block of all civilization from the bench. The ramifications of this decision regarding our system of government, inalienable rights, and religious liberty are devastating. Yet, shockingly, there has been no organized revolution to fight back against judicial tyranny despite the torrent of religious liberty problems spawned by the court decision since 2015.

This was perhaps the worst decision ever made by the Supreme Court in terms of the violence it does to our system of governance. Obviously, we are not talking about deadly outcomes like Roe or slavery in the case of Dred Scott, but in terms of the ramifications to our system of government, no case more is detrimental than Obergefell. If a court can now redefine the most foundational and immutable laws of nature and mandate that outcome on the rest of the federal government and all 50 states — and be regarded as the final and exclusive “law of the land” — then there is nothing the courts cannot do. They are now the judge, jury, and executioner of our entire system of government and civil society.

Moreover, as I explain in chapter three of Stolen Sovereignty, the decision is now leading to the gradual but steady trend of criminalizing religion. The litmus test for determining whether an asserted liberty interest is a fundamental right was always whether that act was “deeply rooted in our history and traditions.”[1] Yet, the homosexual agenda, which is antithetical to a right deeply rooted in history and tradition, is now forcing Judea-Christian adherence — which (like it or not) is manifestly rooted in our history and tradition — to yield before its ever evolving tenets.

Thus, we see courts mandating individuals to service the homosexual agenda with their private businesses while forcing taxpayers to fund Planned Parenthood, a private entity under investigation for selling baby parts. Schools are being forced to treat boys like girls. Pharmacies are being forced to sell every type of contraception known to man, even when those products are all available elsewhere within a few miles. Puny lower courts judges are forcing towns to rip down monuments of the Ten Commandments.

Consequently, it’s not just that the political elites, led by the legal profession, have succeeded in accelerating the transformation from a faith-based society and government to one built upon paganism. It is now coercing adherence to its agenda.

Liberty thrived with a religious foundation, which is a prerequisite for a civil society

Even at the pinnacle of religious observance in this country, nobody was ever coerced to service religion if they personally chose to live a secular life. Yet, paganism, like other theocracies that existed before the American republic, seems to be incompatible with freedom even as it scandalously invokes its virtues. As Tocqueville observed, “The character of Anglo-American civilization … is the product … of two perfectly distinct elements that elsewhere are often at odds. But in America, these two have been successfully blended, in a way, and marvelously combined. I mean the spirit of religion and the spirit of liberty.”

Liberal secularists like to think of their ideology as the ultimate guardian of freedom. But as we’ve learned from history, paganism and hedonism invariably lead to the same tyranny as Islamic theocracies. That is exactly what the Jews were fighting during the time of Hanukah around 2,200 years ago when the Hellenists sought to criminalize their religion. Obviously, religious societies can also be tyrannical and that is exactly what we are seeing today with political Islam, which ironically, yet not surprisingly, is excused by the secular Left.

Our founding was different, though. It wove together a brand of Judeo-Christian ethos that harnessed the principles of the Enlightenment and the “freest principles” of English Common Law[2] to eschew the practice of faith as a tool for theocracy and use it instead as the foundation for public liberty. Not all faith-based societies are inoculated from despotism even post-Enlightenment, not by a mile. But any society built on freedom must be fueled by faith. As Tocqueville famously said, “[D]espotism can do without faith but liberty cannot.” Indeed, this is why other religious faiths (or non-religious people), including the very descendants of the Jews persecuted by the pagan Greeks, have enjoyed unparalleled freedom in this particular majority-Christian country.

Despite the decline of religious adherence and respect in this country, the overwhelming majority of Americans are spending time celebrating a religious holiday this week. Clearly, it doesn’t automatically translate into a more religious society, for as Benjamin Rush quipped, “O! ’tis easier to keep Holidays than Commandments.” However, we can hope and pray that this season will rekindle that spark and return this country to its foundation of religious piety that gave rise to the freest nation on earth, and which is needed to ensure that we remain a free people. (For more from the author of “Will This Holiday Season Rekindle the Religious Fervor That Sustains Liberty?” please click HERE)

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While most people know Jolly Old Saint Nick as a friendly figure, he too is not immune from the perils of administrative overreach and overcriminalization.

To get you in the Christmas spirit, here is a list of some of the potential crimes and violations of federal law Saint Nick as he prepares to take flight for 2016.

1. The Reindeer Act

Many have tried finding Santa’s workshop—without success—but children have long mailed letters to the Santa Claus House located at 101 St. Nicholas Drive in North Pole, Alaska. This office location is the first source of trouble for Father Christmas. Under the Reindeer Act, signed into law by President Franklin D. Roosevelt in 1937, only Alaska Natives are allowed to own reindeer in Alaska.

While Santa has been operating out of the North Pole for many years, only Eskimos, Indians, and Aleuts inhabiting Alaska at the time the United States purchased the land from Russia are considered natives under the act, and Saint Nicholas is from the Greek village Patara in modern-day Turkey. Luckily for Santa, he might be able to avoid the $5,000 fine for violating this provision of the Code of Federal Regulations, but only if he applies for and is granted a special use permit to possess reindeers as a non-native.

2. The Lacey Act

Even if Santa gets around the Reindeer Act, he may face civil and criminal penalties under the Lacey Act if his purchase, sale, possession, or use of reindeer—or any other flora or fauna— violates any state or federal law or the law of any foreign nation, no matter what language or code that foreign law is written in.

Just as some unwitting Americans have been convicted of offenses such as the
“importation of Caribbean spiny lobsters from Honduras” in violation of Honduran packaging laws, Santa could be committing a crime each time he crosses borders to deliver flora or fauna.

3. Flying Without a License

Despite Santa’s many years of experience, there is no Mr. Claus listed in the Federal Aviation Administration’s pilot certificates database. If Santa is piloting his sleigh without an airman’s certificate, he is in violation of 49 U.S.C. § 46317.

Any pilot who operates an aircraft without a proper license is guilty of a federal crime punishable by three years in prison (the sleigh would almost certainly be deemed an aircraft under 49 U.S.C. § 40102(a)(6)). And that is only for Santa’s role as a pilot. If his sleigh is not deemed airworthy, Santa will be in violation of 14 C.F.R. § 91.7 and subject to additional civil penalties by the FAA.

If Santa’s sleigh is approved, he then must post “within” the “aircraft” a copy of the registration, airworthiness certificate, and other official documents, to be displayed “at the cabin or cockpit entrance so that it is legible to passengers or crew,” per 14 C.F.R. § 91.203(b); the sleigh’s baggage compartment must be installed subject to Subsection C with a copy of FAA Form 337 authorizing such installation maintained on board the sleigh; and all fuel venting and exhaust emissions must meet additional requirements.

Hopefully Santa has a good compliance team.

4. False Statements

Any white lie that falls within the jurisdiction of the U.S. government could be a federal crime. As Heritage scholars have written elsewhere, there is one general federal statute for false statements that “should be broad enough to reach any fib or whopper that the federal government could have a good reason to prosecute.”

But there are dozens more specific criminal statutes that punish false statements regarding such minutiae as fluid milk products. If Santa parks his sleigh on federal land and encounters a park ranger while coming down the chimney, he’d better not tell a fib about what he’s up to or he could end up in big trouble. (He would also be violating another federal law if he parks his sleigh in a way that inconveniences another person on federal land, but I digress.)

Supreme Court Justice Ruth Bader Ginsburg once observed that, under federal false statement statutes, “the prospect remains that an overzealous prosecutor or investigator—aware that a person has committed some suspicious acts, but unable to make a criminal case—will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”

Here, once Santa gets off the ground, his real legal trouble is only just beginning. A government agent need only ask Santa if he committed burglary, trespass, or larceny, or ask him, “Are you really Santa Claus?” In that case, Santa really would need a Miracle on 34th Street to stay out of the slammer for lying.

5. IRS Tax Gift

Even if Santa evades capture during his Christmas Eve flight, he then must deal with Uncle Sam upon his return to the North Pole. Under IRS gift tax rules, the giver of gifts above a certain threshold is taxed at a rate up to 40 percent of the value of the gift. While individuals are allowed to make gifts up to $14,000 per recipient without encountering any tax consequences—most toy trucks and dolls would probably fit under this exemption—gifts above the limit must be reported on IRS Form 709.

As such, each time Santa drops off a shiny new BMW for mom or dad, he will be on the hook for an even bigger tax bill on April 15. Willful failure to file a gift tax return can land Santa in prison for up to one year under 26 U.S.C. § 7203. Let no good deed go unpunished.

The List Goes On

While those are just a few examples of how Santa may be held criminally and civilly liable for violating U.S. law, there are several other ways in which he operates in legal gray areas.

For instance, how does Santa compensate all of his elves who are working around the clock to finish making toys before the big day? If they are not receiving proper overtime pay in a safe work environment, Santa will be in violation of numerous provisions of the Fair Labor Standards Act. Finally, given the size of his operation, Santa must be complying with the Affordable Care Act’s employer mandate.

If Santa cannot even stay in line with every single government rule and regulation, how is the average American supposed to keep up? Attorney Harvey Silverglate argues that the average American unwittingly commits three felonies a day due to vague laws and governmental overreach.

The American people—and Mr. Claus—deserve better. Heritage scholars have identified a comprehensive strategy to combat the problem of overcriminalization, which threatens liberty by using the criminal law and penalties to attempt to solve every problem in society and compel compliance with regulatory schemes.

Merry Christmas to all, and to all a good night. (For more from the author of “5 Ways the Feds Might Trip up Santa Claus This Year” please click HERE)

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