Supreme Court Ruling Puts Holiday Spirit Back Onto Once-Forbidden Public Property

Once upon a holiday time, lawyers decked the halls with litigation.

There were lots of neatly typed lawsuits that challenged the constitutionality of nativity scenes, menorahs and crosses placed on public property. It was a dependable, year-end ritual of Christmases and Hanukkahs past.

Now that tradition appears to be fading away. This year, experts agree, the number of seasonal lawsuits over religious symbols has fallen like needles from a sapped pine.

And the symbols, recipients of newly minted free-speech status, are reappearing in public places from which they had been barred.

Holiday season disputes over the separation of church and state have waned, explained American Jewish Congress lawyer Marc D. Stern, because “the Supreme Court has pretty much settled everything that was left open.”

First, in 1984, the court gave us the Plastic Reindeer Rule, a muchridiculed amalgam of God and Mammon, religion and commerce.

The rule permits cities to display Jesus, Mary, Joseph, shepherds and angels if their religious significance is diluted by such secular mainstays as Santa Claus, sleighs, reindeer, carolers, candy canes, teddy bears, snowmen, stars, lights and Walt Disney figures.

Then, last June, the court handed down what could be called the Klan Cross Doctrine.

It forbids the government from discriminating against any speaker’s message - including unpopular religious views - in a public forum.

The ruling, announced in a case called Capitol Square Review Board vs. Pinette, upheld the Ku Klux Klan’s right to erect a cross in a public park in front of the Ohio State Capitol in Columbus. The park has been used for speeches, gatherings, rallies and festivals for over a century.

“The decision in Pinette was the stroke of midnight for a lot of Scrooges who wanted to steal Christmas and Hanukkah from people of faith,” exulted Kevin Hasson, president of the Becket Fund for Religious Liberty, a Washington-based publicinterest law firm that defends religious expression.

As a result of the Pinette ruling, nativity scenes and menorahs are springing up in squares, parks and other public gathering places during this holiday season.

In Columbus, Ohio, the Klan’s cross and an Orthodox Jewish group’s menorah are expected to appear in Capitol Square, a state spokeswoman said.

In Trumbull, Conn., the Knights of Columbus set up a nativity scene on the Town Hall green - the same display that earlier was barred by town officials and federal judges.

“Anybody who can’t put up a municipal creche these days is incompetent,” said Stern of the American Jewish Congress, one of several organizations standing sentinel on the Jeffersonian wall that divides government and religion.

The ruling made possible, for example, the expansion of the nativity displays of Rita Warren, 68, of Fairfax, Va., whose bitter memories of fascist repression in Italy led her to become a crusader for religious freedom in the United States.

“We used to pray in school in Italy and we had a crucifix on the wall, but they took out the prayers and the crucifix and the teacher told us we had to salute Benito Mussolini every day - and later Hitler, too,” Warren said.

For 15 years at Christmas, the police have allowed her to set up a nativity scene in a cordoned freespeech zone on the east steps of the U.S. Capitol.

Each day, Warren commutes from Virginia with her Bronx-born fiber glass companions Mary, Joseph, Baby Jesus, three kings, a shepherd, two sheep and an angel - plus a “Happy Hanukkah” sign and tapes of Pavarotti and Jim Nabors singing Christmas melodies. (For security reasons, the Capitol Police don’t allow the nativity figures to stay overnight).

“Her display should be banned on aesthetic grounds alone,” confided Joseph L. Conn, assistant communications director for Americans United for Separation of Church and State. “She has one of the worstlooking angels I’ve seen. Really awful.”

Now Warren has multiplied her celebration of Jesus’ birth into something of an infant industry. This year she placed less expensive nativity scenes on public land near City Hall in Fairfax, Va., and at the Fairfax County Building.

“I waited for 30 years for the right to do this,” she exclaimed. “And we’re not going to stop with Virginia. My friends are doing the same thing in Massachusetts, Connecticut and Maine.

“I do this because I have a very strong faith in God. Mine is not a fanatical faith. I don’t want to force my belief on nobody. I just want to enforce my rights.”

This doesn’t mean that a Christmas nativity scene or a Hanukkah menorah is always permitted in a place designated as a public forum.

In its Pinette ruling, the Supreme Court indicated that a religious activity or symbol in a public forum would be unconstitutional if an informed observer reasonably believed the display was endorsed by the government.

So disclaimers are commonplace. The City of Fairfax, for example, required Warren to erect a sign saying that the city had not endorsed her religious display.

Still, lawsuits over religious symbols persist. They claim that the symbols indicate government endorsement of some religions and discrimination against others.