Unconstitutional isn’t necessarily wrong

Christmas is probably unconstitutional.

I’m no lawyer, but the logic seems unassailable to me. Consider: Santa Claus aside, Christmas is an explicitly Christian holiday and the only holiday of any religion to be observed by the federal government. Which would seem to violate the First Amendment edict that Congress “shall make no law respecting an establishment of religion.” Yet to the best of my admittedly limited knowledge, no one has ever sued Christmas before the Supreme Court.

Not that I’m trying to give any ideas. No, I’m only trying to tease out an opinion I can live with in a case the court heard last week, about a cross in the Mojave Desert.

The original cross (it has been replaced a number of times over the years) was erected in 1934 as a tribute to the dead of World War I and sits in a remote corner of what is now the Mojave National Preserve. Its legal troubles began 10 years ago with a former employee of the National Park Service who sued because he thought the cross an improper display on federal land in that it celebrated one faith over others.

It’s a contention Justice Antonin Scalia sharply disputed last week. “It’s erected as a war memorial,” he said. “I assume it is erected in honor of all the war dead.”

To which Peter Eliasberg, a lawyer representing the American Civil Liberties Union, shot back: “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”

Scalia was unconvinced: “I don’t think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

But Eliasberg’s conclusion was, of course, perfectly valid, and Scalia’s obstinate insistence that the cross is a generic symbol manages to simultaneously demean Christianity and deftly illustrate the sort of bullying the Constitution discourages. How easily and readily the majority embraces the myopic view that its symbols and norms represent us all.

That said, I keep wondering what good can come of this.

The plaintiff is said to be a devout Catholic, so we can take it on – ahem – faith that he is motivated solely by principle. For the record, the principle is one I support.

You need only look at Iran to know the separation of church and state is a good thing. You do not post the Ten Commandments in court for the same reason you do not mandate prayer in schools or require Bible study to get a job: There is a coercive effect that is wholly unfair to those of other faiths or no faith at all.

But I have trouble seeing the coercive effect of a cross in the middle of nowhere.

I submit that this is a battle poorly chosen. Yes, the argument arguably has legal merit, but you have to ask yourself: What’s the point? Is someone really injured by a cross in the desert? Or is this not about validating principle at all costs – even public peace and common sense?

Indeed, by the same reasoning, one might sue cities that allow crosses to be planted at roadsides where traffic fatalities have occurred. Except that if it comforts some grieving family and your only “injury” is to glimpse it while driving by at 65 mph, why would you bother? Principle absent human compassion is just intellectual masturbation.

So forgive me if I am unimpressed by the argument that a cross in the middle of nowhere is unconstitutional. Understand: I think the argument may well be correct.

But that’s not the same as being right.