Supreme Court rethinks debate on Nativity scenes

December 25, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- It is possible that this will be the last Christmas that city officials around the nation will have to do what town officers in Vienna, Va., did under court order yesterday: get rid of a Nativity scene on government property.

A creche on the lawn of a community center on town property, paid for and put up by the Knights of Columbus, was ruled unconstitutional by a federal judge Monday. Town officials turned out the lights on the display that night and yesterday it was moved three-quarters of a mile away -- to constitutionally safe private property on the lawn of a volunteer fire department.

This was only the latest in an annual series of court battles over displays containing religious symbols placed inside or outside government buildings -- yearly legal fights as predictable a part of Christmas as carols, tinsel, sleigh bells and Santa Claus.

When U.S. District Judge Thomas S. Ellis III of Alexandria ordered the Christmas Eve removal of the creche outside Vienna's Park Street community center, he was merely applying what he understood the Supreme Court to require under the First Amendment's command that government and religion be kept separate.

But the court even now is rethinking the entire constitutional question of how government deals with religion, and a majority of the justices may be ready to relax the constitutional restrictions significantly.

In a major test case growing out of a rabbi's prayer at a public school graduation ceremony in Providence, R.I., the court is considering changing the constitutional rules so that government could take action that favors or accommodates religion as long as there is no official "coercion" of religious beliefs.

That standard, advocated by the Bush administration among other supporters, probably would lower, if not remove, the barrier to symbolic expressions of religion on official property.

If the court adopts the standard, religious displays marking the Christmas season could re-emerge with prominence next year on the grounds or in the lobbies of government buildings across America. Displays like that have retained considerable public support in many communities, despite the fact that any such display has been likely to be fought in court.

Although the Supreme Court has voiced a general disapproval of such displays, the justices have never spoken with enough clarity or finality to keep all such displays off government property.

At one time, the court indicated that religious displays could be allowed under government auspices, if the displays were surrounded by enough non-religious symbolism -- such as Santa, reindeers, candy canes, decorated pine trees. At other times, however, the court has said the religious displays may be so vivid that they lead people to believe that the government is sponsoring a religious expression -- and that is not allowed.

With those openings left in the supposed barrier that separates the government from Nativity scenes, officials in various counties and cities, reacting to the pleas of some of their religiously committed constituents, looked for ways to fit Christmas religious displays into the Constitution's uncertain mandates.

But sooner or later, the local governments trying their legal luck with a Nativity scene got hauled into court.

For three years, the town of Vienna, a suburb of Washington, had allowed the Knights of Columbus to put up its Nativity scene outside the community center. For two of those years, the town also allowed a local rabbi to put up a menorah at the center to mark Hannukah; the rabbi did not seek permission this year.

This year, however, a group of Vienna residents offended by the Nativity scene on town property took on the town in Judge Ellis' court, and the town lost. Obeying that ruling, Vienna's part-time mayor, Charles Robinson, ordered the Nativity scene removed.

The Knights of Columbus took it down and moved it yesterday, on Christmas Eve, to a location that Mayor Robinson suggested, with some sarcasm, made it "even more prominent than it was previously."

A retired trade association lawyer who mixes his $4,500-a-year job as mayor with a small private law practice in Vienna, Mr. Robinson said that he was not sure "that the Founding Fathers anticipated this particular result."

"My feeling is that it's really an unfortunate, sad commentary on the level of public tolerance we're experiencing in this country," he commented in a telephone interview. "This is a major holiday, but it has been dragged into litigation and the court system, setting up an adversarial relationship among the people of a community."

That view, of course, is disputed by the American Civil Liberties Union, and by groups it represents in challenging religious displays under government auspices.

It is the willingness of public officials to let such displays go onto public property that fosters divisiveness in a community, those groups contend.

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