Although Christmas is over, certain nettlesome constitutional problems concerned with its celebration remain. For instance, of the church-state cases yet to be decided by the Supreme Court this term, the most "uniquely difficult," as the American Civil Liberties Union concedes, has to do with a cr
The village of Scarsdale, N.Y., denied a group of residents permission to place a privately sponsored 6-foot-high Nativity scene in Boniface Circle, a small public park at the center of the business district, for two weeks in December. (Last term's explosive Pawtucket cr other things, a city's sponsoring a crprivate property.)
What makes Scarsdale's different from all other cror the first time, the lower federal courts have applied -- in contrary ways -- a 1981 Supreme Court decision, Widmar v. Vincent, to the inflammatory issue of religious symbols on public land.
The 1981 case concerned a state university that had refused house room to a student club composed of evangelical Christians. The University of Missouri at Kansas City had believed that recognizing the club would make it appear as if the state school were promoting a particular religion and thereby abusing the Establishment Clause of the First Amendment.
The Supreme Court vigorously disagreed, ruling 8-1 that since there were more than 100 student groups using university facilities, a "public forum" had been established and it was unconstitutional to banish only religious speech from that forum. And in that multiplicity of voices, the state, by allowing space for the religious club, could not be said to have given its imprimatur of approval to a religion.
In the Scarsdale case, Board of Trustees v. McCreary, federal District Judge Charles Stewart Jr. took careful note of the argument that since the public park in Scarsdale is itself a traditional First Amendment forum, symbolic religious speech -- the cr barred from it. But Stewart was not convinced, pointing out that here is a clearly religious symbol standing alone on this public property.
It would have been okay, the judge said, if the residents in favor of the cr hold a religious rally, conduct a sermon or pass out leaflets in that public space. Such personal expression would be protected religious speech.
But to leave the cr itself means that "no longer is the land just a place from which a message can be proclaimed; when a symbol is left on public land, the land actually becomes the message bearer." Accordingly, the state is seen as advancing religion. After all, the judge added, if you walk by the park and see no one there, just the cr is that the Nativity scene "is supported by the state."
Judge Stewart was reversed by the Second Circuit Court of Appeals, which applied the strengthening of religious-speech rights in Widmar to the placing of religious symbols on public land. The appellate judges found that since Boniface Circle is available to varied groups in the village, providing space for the cres not violate the Establishment Clause. The village, like the University of Missouri, would not be promoting religion, but rather would be a neutral provider of free space for free speech.
In an amicus brief to the Supreme Court urging that Scarsdale be upheld in its decision to bar the crerties Union begins by saying that religious speech -- including symbols -- is clearly entitled to First Amendment protection. But not quite as much as other speech. There are times when, because of the Establishment Clause, religious speech must be regulated, and this is one of those times.
Only the crace Circle, the ACLU points out. No secular Santa Claus, reindeer, candy-striped poles, clowns or teddy bears. Because it is alone, because of what it is and where it is, there will be a strong appearance of state endorsement of "the Christian version of Christmas."
However the Supreme Court decides, the result will add to the historical bitterness of one side or another, because no national holiday so divides some citizens as snarlingly as this one. And understandably so, especially if you're not a Christian.
There is a workable solution, however, apart from the courts. The ACLU just touches on it toward the end of its brief. Let each village, town and city set aside sections of its public lands as Hyde Parks -- clearly identified First Amendment forums for everybody and anybody. Let all manner of song, story and symbol, religious and irreligious, bloom. Except for obscenity and defamation, for they are not protected. And because of all this resounding pluralism, no one could possibly suspect the state of encouraging any of the religious expressions there.
Scarsdale had never thought of that kind of land-use planning. If it had, fewer of its citizens would have looked like Ebenezer Scrooge on Christmas Day.