One might think that the Supreme Court that can hand down clear, fixed rules—we all know and understand Miranda rights—might be able to pull together a clear rule for public holiday displays. Instead, we have a series of impossible cases, each of which renders the law just a bit more murky. Why? Perhaps because there are some extremely religious justices on the current court who view religion as beyond the reach of civil laws. Perhaps because religion is almost necessarily nonnegotiable, and zero sum (just ask some of our friends in Afghanistan) attempts to nip and tuck at its free expression will, by definition, offend. Perhaps the central tension built into the First Amendment—allowing us to worship freely, but prohibiting the government from doing the same—is coming back to bite our collective constitutional butt. School districts and police departments and mayors' offices have learned to expect the Christmas lawsuit along with the Sears catalogue every year. Maybe this year Santa could skip the PlayStation and inspire the high court to clarify this area of law once and for all.
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