If it’s Christmas, then ’tis the season for creche suits, and this past December was no different. The Kentucky chapter of the American Civil Liberties Union filed suit against Gov. Wallace Wilkinson because the state constructed a Nativity scene on the front lawn of the Capitol in Frankfort. Children from the Good Shepherd School (Catholic) stood in for Joseph and Mary in a live reenactment of the Nativity on three occasions.

District Judge William O. Bertelsman found that the creche could stand, but had some conditions: Kentucky must be reimbursed for the $2,400 it spent building the structure, it must also post a disclaimer stating that the creche in no way constitutes an endorsement of Christianity by the state of Kentucky, and it must post another notice informing the public that the structure can be used by any group.

The judge also found as a fact that “an objective observer viewing the stable structure in the context of the holiday season and of its physical surroundings [i.e., surrounded by a Christmas tree, decorated lamp posts, and a snowflake floral clock] would interpret it not as an endorsement of religion or any religious doctrine, but merely as a reminder of the historical religious origins of Christmas.” In other words, as some local commentators rephrased it, the district court was ruling that the creche was not a religious symbol.

Idiotic as the ruling was. Judge Bertelsman was holding himself to precedent. In finding that the disclaimer was necessary because 1) an observer standing directly in front of the creche could not see the surrounding Christmas tree and decorated drive, 2) and hence would see the creche alone, 3) and hence might think Kentucky was endorsing Christianity, he was following the ruling in another 6th Circuit case (the ACLU v. City of Birmingham). There the court held that (to quote Bertelsman’s wording) “unless a Nativity display was physically surrounded by secular decorations, it must be interpreted as constituting an endorsement of religion.” My first question is, of course, why can’t that hypothetical observer take a few steps to the side to catch the Christmas tree? But that’s not really the problem here.

Judge Bertelsman was also following the standard established by Justice O’Connor in her concurring opinion to the 1984 Supreme Court decision on Lynch v. Donnelly. The majority held that this city-erected Nativity scene did not violate that Establishment Clause, but Justice O’Connor added that there should be an endorsement test; if in involving itself with a religious matter the government purposefully or as a result of its practice (irrespective of intent) could be found to be endorsing religion, then the creche had to go.

Welcome to the world of law. No use asking why our ship of state has become a ship of fools who cannot coherently distinguish between the intent of the Establishment Clause—no state-sponsored religion—and a few days’ worth of Catholic children playing Joseph and Mary on a state capitol’s steps. Nor is it much help that several judges, justices, and other government officials have ducked the issue of religion to argue that a creche or a cross is okay because it is a general, nonsectarian, historical rather than religious symbol. That is ridiculous.

Arguing for the retention of a Latin cross at a Marine base, former Marine Corps Commandant P.X. Kelley stated that the cross was “a nonsectarian symbol of hope” for families of Vietnam POW’s and MIA’s. The Jewish War Veterans had sued to have it removed, stating that it was a religious symbol. They were right, of course, that it is a religious symbol; they were wrong to begrudge a Christian memorial to a group of men who were probably mostly Christians. If the JWV is so offended, surely a better way for it to spend its money is erecting a Star of David in memory of dead Jewish veterans. Are we going to have to strip Arlington of its crosses now, since our tax dollars go to cut the grass? Should we be expecting suits against Corpus Christi, San Diego, and Los Angeles, so that any mention of a Higher Being can be literally wiped off the map?

With the unintentional irony that characterizes so much legal opinion these days, the most successful argument in the courts in defense of creches, crosses, and menorahs has been the right to free speech. In other words, some judges are using the Establishment Clause of the First Amendment to outlaw religious symbols, while others are using the free speech clause—also in the First Amendment—to retain them. A Vermont judge ruled that a menorah in a city park was permissible because the park was traditionally a forum for free speech. A federal judge in Chicago ruled that a creche (unencumbered by Santa or other secular symbols) could stand in a plaza across from city hall because that plaza, too, was a public forum. This seems a more reasonable argument; certainly it’s a vast improvement on the Supreme Court’s finding that a creche is okay only when ringed by reindeer, because the nonreligious symbols gave even a religious symbol a “secular effect.”

But it’s not much. At issue is a more troubling question than free speech. From its very beginning the United States has been predominantly a nation of Christians. States like Kentucky are overwhelmingly Christian. If non-Christian minorities continue to make war on Christian symbolism, they do so at the risk of a backlash from the majority—as the ruckus in Kentucky over the case shows.

The Court may rule on another creche case this month (the City of Allegheny v. ACLU). Unfortunately, all we can expect is more confusion. Organizations like the ACLU make things worse by pleading their cases not to local, elected officials, but by resorting to the courts, often federal courts. In the not-so-distant past it would have been clear that the courts had no jurisdiction here. If members of the Kentucky ACLU are horrified at the misuse of their state tax dollars, let them collect signatures and petition the governor. But if we permit the courts to continue to meddle in every aspect of state and local business, we undermine the very basis of self-government. (KD)