But as Judge Richard Nygaard noted in his dissent, the Supreme Court's "insufficent and inconsistent guidance" has led to "fact-specific inquiries that focus on the size, shape, and inferential message delivered by displays with religious elements, leaving almost any display that has a religious symbol in it open to challenge and any such display that has secular elements, no matter how trivial, open to judicial approval." Perhaps, he suggested, "the behavior at issue here is incapable of being guided."

 I think Nygaard is right. While I oppose government-sponsored religious displays as a matter of policy, I've concluded that constitutional challenges to them are not only unsatisfying in their results but intellectually suspect in their premises. All these displays constitute official endorsements of religion to some extent, but that does not mean they represent an "establishment of religion," which is what the First Amendment actually prohibits.

 Still, the Committee for Justice is fundamentally mistaken in saying Alito took a stand for "protection of religious expression" when he let Jersey City put up its creche and menorah. The First Amendment guarantees the religious freedom of individuals, not the government's right to erect religious displays on public property.

 Fox News host John Gibson, author of "The War on Christmas," likewise claims removing Christmas trees and Santa Claus from city halls and public parks amounts to "the prohibition of free exercise," since "these are secular symbols." In other words, government-sponsored Christmas displays must be permitted because they're religious, and there's no reason to ban them because they're secular. I think Gibson has been reading too many Supreme Court opinions.