Any one with lingering doubts about whether law is capable of navigating the nuances of ethics should ponder the Christmas display at the Illinois State Capital, where an effort to avoid state support of religion has resulted in an offensive mockery of it that is inappropriate for any season.

The collision of the Constitution’s Establishment Clause (and the Supreme Court’s  broad interpretation of it) with the cultural, traditional. historical, artistic and commercial aspects of Christmas have created an annual fiasco that looks silly, irritates everyone, and accomplishes nothing constructive. It would be better to have no Christmas display at all, and that fact proves the limitation of law, and the subordination of ethics.

The U. S. Supreme Court took the part of the First Amendment  the Founders obviously intended to preclude the abomination of state-mandated religions thatmany of their own ancestors came to America to escape, and declared that it also prohibited the state from encouraging, approving, endorsing or even smiling gently upon religious practices generally. By this logic, it isn’t enough for a government to balance every creche with a menorah; it also has to accommodate those who want to publicly proclaim that anyone who thinks a creche or a minorah has meaning is a superstitions dolt. That’s right: the Constitution won’t let a state support or endorse religion, but it will allow a state to denigrate religion, as long as it denigrates all religion. Does anyone think Justice Hugo Black, the brilliant First Amendment absolutist whose majority opinion in the Everson decision laid the groundwork for all the public square battles in the past half century, anticipated this result or would be pleased with it?

The atheist  display at the Illinois State Capitol, appearing for the second straight year to ensure that Illinois isn’t forcing Christianity on its citizens by showing a manger scene, concludes …

“Religion is just myth and superstition that hardens hearts and enslaves minds.”

Not surprisingly, this sentiment makes many people angry and unhappy. It is First Amendment speech, to be sure. It is also rude and unnecessarily confrontational. Less confrontational but just as rude is the “Festivus pole” that the spineless bureaucrats in the Illinois government also allow to grace the Capitol’s “Christmas display.” Festivus is a satirical fake religion that formed the basis of the plot of a well-loved “Seinfeld” episode. (Why the Flying Spaghetti Monster has not been similarly enshrined is a mystery.)

Festivus is the final straw. Illinois should just give up and say to hell with it: no Christmas displays, period. The jerks have won.  Just admit that trying to celebrate the season, embrace the cultural traditions of Christmas, encourage all the values the Spirits of Christmas Past, Present and Future taught Ebenezer Scrooge, and bring citizens together though an annual re-dedication to charity, benevolence, family and caring, is impossible in a society where so many people feel that they have to assert their power by spoiling something enjoyed by others.

Law deals in absolutes, and  it was probably inevitable that once courts had to apply the Establishment Clause in real life disputes, it would create opportunities for the intolerant, the mean-spirited and the selfish among us to get the upper hand at the one time of year when exactly the opposite attitudes should be flourishing. After all, some of these people think promoting the Golden Rule is also unconstitutional. It’s in the Bible, you know. Horrors.

Ethics would handle Christmas differently. Ethics would encourage everyone to allow their community to embrace the values and the symbols of Christmas as valuable and effective balm for all the conflicts and stresses that beset us the rest of the year. Ethics would insist that anyone who doesn’t want to celebrate Christmas would nonetheless respect the desire of fellow citizens to do so without being ridiculed or obstructed, and would not hold that there was something dangerous or sinister in a  government of the people joining in the people’s festivities to a limited extent. The public is more estranged from its elected governments now than ever before, and the fact that municipalities and states have been forced to stay remote from popular holidays is one of the reasons.

Ethics would argue that just because you can make a mockery of religious traditions people deeply care about by putting a Festivus pole next to the menorah in the Illinois Capitol, you don’t; you don’t because it does more harm than good, and because your little joke does not justify all the people it hurts. And just because you can erect a pro-atheist display that suggests that religious people are idiots, you don’t, because it isn’t necessary, respectful, helpful or nice.

Law, however, has the upper hand over ethics in society, and sometimes this  gives unethical people the opportunity they need to make life a little less rich and happy for everyone else. That is why, when it comes to Christmas season displays in town squares and state capitols, nothing is better than anything, even though something, if it followed fair and ethical principles, could do  quite a bit of good.  To accept something that isn’t everything, however, one has to be able to enjoy and respect the happiness of others, even though what makes them happy might not be important to you. This  is called caring about others, and is, ironically enough, one of the messages of Christmas.

Happy Festivus.