The Supreme Court yesterday, on a tie vote, let stand a ruling that may require Scarsdale, N.Y., which has a large Jewish population, to allow a nativity scene in a public park in the center of town.
The vote, tied because Justice Lewis F. Powell Jr. did not participate, sets no national precedent and brought the total of ties in this term to five.
In a controversial decision in its last term, the court ruled, 5 to 4, that Pawtucket, R.I., could include a publicly owned nativity scene as part of its municipally sponsored Christmas display.
The Scarsdale case tested whether a local government opposed to using land for that purpose could be forced to do so. Officials in the New York City suburb had allowed the display for 24 years but voted in 1981 against allowing the privately owned display on public land.
A federal appeals court, citing the Pawtucket case and a 1981 Supreme Court decision that a state university could not bar religious groups from meeting on campus, said the park was a public forum that had been used by other groups. The village, the appeals court said, could not deny its use to any group solely because of the group's "speech."
A Scarsdale village attorney said that he is disappointed by the ruling and that the village has not decided what to do.
According to a brief filed in the case by the U.S. solicitor general, the village has several options to avoid permitting the display.
The appeals court ruling said First Amendment strictures on separation of church and state did not forbid the display. The appeals court said the village could not set rules based on the display's "content."
But the appeals court emphasized that the village may adopt other rules and regulations, including barring all displays from the park, that could constitutionally exclude the nativity display.
The vote in Board of Trustees of the Village of Scarsdale v. McCreary was one of three tie decisions issued yesterday. The five ties in this term are the most since 1970. Since 1927, the court has never had more than eight tie votes, a record set in the 1940 term.
The five ties result from Powell's absence for 10 weeks after prostate surgery in early January. Powell, a judicial centrist, missed hearing 56 cases, of which 13 have been decided. In addition to the five ties, three were ordered argued anew and five were decided by opinions.
In yesterday's other ties, the court let stand an appeals court ruling that denied attorneys' fees in certain civil rights cases and let stand a ruling invalidating a California leasing system for oil and gas exploration of state lands. The cases were Spencer v. South Carolina Tax Commission and Cory v. Western Oil and Gas Association, respectively.