IF IT’S CHRISTMAS, then ’tis thenseason for creche suits, and this pastnDecember was no different. The Kentuckynchapter of the American CivilnLiberties Union filed suit against Gov.nWallace Wilkinson because the statenconstructed a Nativity scene on thenfront lawn of the Capitol in Frankfort.nChildren from the Cood ShepherdnSchool (Catholic) stood in for Josephnand Mary in a live reenactment of thenNativity on three occasions.nDistrict Judge William O. Bertelsmannfound that the creche couldnstand, but had some conditions: Kentuckynmust be reimbursed for then$2,400 it spent building the structure,nit must also post a disclaimer statingnthat the creche in no way constitutesnan endorsement of Christianity by thenstate of Kentucky, and it must postnanother notice informing the publicnthat the structure can be used by anyngroup.nThe judge also found as a fact thatn”an objective observer viewing the stablenstructure in the context of thenholiday season and of its physical surroundingsn[i.e., surrounded by anChristmas tree, decorated lamp posts,nand a snowflake floral clock] wouldninterpret it not as an endorsement ofnreligion or any religious doctrine, butnmerely as a reminder of the historicalnreligious origins of Christmas. ” Innother words, as some local commentatorsnrephrased it, the district court wasnruling that the creche was not a religiousnsymbol.nIdiotic as the ruling was. JudgenBertelsman was holding himself tonprecedent. In finding that the disclaimernwas necessary because 1) an observernstanding directly in front of thencreche could not see the surroundingnChristmas tree and decorated drive, 2)nand hence would see the creche alone,n3) and hence might think Kentuckynwas endorsing Christianity, he was followingnthe ruling in another 6th Circuitncase (the ACLU v. City of Birmingham).nThere the court held thatn(to quote Bertelsman’s wording) “un­n6/CHRONICLESnCULTURAL REVOLUTIONSnless a Nativity display was physicallynsurrounded by secular decorations, itnmust be interpreted as constituting annendorsement of religion.” My firstnquestion is, of course, why can’t thatnhypothetical observer take a few stepsnto the side to catch the Christmas tree?nBut that’s not really the problem here.nJudge Bertelsman was also followingnthe standard established by JusticenO’Connor in her concurring opinionnto the 1984 Supreme Court decisionnon Lynch v. Donnelly. The majoritynheld that this city-erected Nativitynscene did not violate that EstablishmentnClause, but Justice O’Connornadded that there should be an endorsementntest; if in involving itself with anreligious matter the government purposefullynor as a result of its practicen(irrespective of intent) could be foundnto be endorsing religion, then thencreche had to go.nWelcome to the world of law. Nonuse asking why our ship of state hasnbecome a ship of fools who cannotncoherently distinguish between the intentnof the Establishment Clause — nonstate-sponsored religion — and a fewndays’ worth of Catholic children playingnJoseph and Mary on a state capitol’snsteps. Nor is it much help thatnseveral judges, justices, and other governmentnofficials have ducked the issuenof religion to argue that a creche or ancross is okay because it is a general,nnonsectarian, historical rather than religiousnsymbol. That is ridiculous.nArguing for the retention of a Latinncross at a Marine base, former MarinenCorps Commandant P.X. Kelley statednthat the cross was “a nonsectariannsymbol of hope” for families of VietnamnPOW’s and MIA’s. The JewishnWar Veterans had sued to have itnremoved, stating that it was a religiousnsymbol. They were right, of course,nthat it is a religious symbol; they werenwrong to begrudge a Christian memorialnto a group of men who werenprobably mostly Christians. If thenJWV is so offended, surely a betternway for it to spend its money is erectingnnna Star of David in memory of deadnJewish.veterans. Are we going to havento strip Arlington of its crosses now,nsince our tax dollars go to cut thengrass? Should we be expecting suitsnagainst Corpus Christi, San Diego,nand Los Angeles, so that any mentionnof a Higher Being can be literallynwiped off the map?nWith the unintentional irony thatncharacterizes so much legal opinionnthese days, the most successful argumentnin the courts in defense of creches,ncrosses, and menorahs has been thenright to free speech. In other words,nsome judges are using the EstablishmentnClause of the First Amendmentnto outlaw religious symbols, whilenothers are using the free speech clausen— also in the First Amendment — tonretain them. A Vermont judge rulednthat a menorah in a city park wasnpermissible because the park was traditionallyna forum for free speech. Anfederal judge in Chicago ruled that ancreche (unencumbered by Santa ornother secular symbols) could stand in anplaza across from city hall because thatnplaza, too, was a public forum. Thisnseems a more reasonable argument;ncertainly it’s a vast improvement on thenSupreme Court’s finding that a crechenis okay only when ringed by reindeer,nbecause the nonreligious symbols gaveneven a religious symbol a “secularneffect.”nBut it’s not much. At issue is a morentroubling question than free speech.nFrom its very beginning the UnitednStates has been predominantly a nationnof Christians. States like Kentucky arenoverwhelmingly Christian. If non-nChristian minorities continue to makenwar on Christian symbolism, they donso at the risk of a backlash from thenmajority — as the ruckus in Kentuckynover the case shows.nThe Court may rule on anotherncreche case this month (the City ofnAllegheny v. ACLU). Unfortunately,nall we can expect is more confusion.nOrganizations like the ACLU makenthings worse by pleading their casesn