NEW YORK (Apr. 4)
Jewish organizations expressed concern today that the 4-4 Supreme Court decision, which may compel the City of Scarsdale to permit erection of a Nativity scene on city public property, may encourage other supporters of public displays of Christmas symbols to push for such displays in other cities.
But there was also general agreement that the decision, in which the Supreme Court reaffirmed, without issuing any ruling, a decision by the Second Circuit Court of Appeals, sitting in Manhattan, upheld the right of private citizens to use of public property for a Nativity scene in citizens to use of public property for a Nativity scene in Scarsdale.
The Second Circuit Court of Appeals treated the issue in the Scarsdale case as one of protecting the freedom of speech also guaranteed by the First Amendment, declaring that the Boniface Circle, a public park in Scarsdale, was “a public forum,” adding that the park is available to a broad range of Scarsdale’s non-religious groups and religious organizations.
The effect of the 4-4 ruling is that it permits such displays only in New York, New Jersey and Connecti- cut, the area of the Second Circuit. But it does not deal with the constitutionality of the Scarsdale display where the Scarsdale Village Board had allowed a Nativity Scene for 24 years until 1981, when the board voted not to allow the privately sponsored Christmas display on its public land.
Howard Friedman, president of the American Jewish Committee, expressed the agency’s “regret” that because of the split Supreme Court vote, “there is still no definitive resolution on whether a government body may be compelled to permit a display of religious symbols, such as a creche or a menorah, on public property.”
Friedman said that “even with the Court of Appeals ruling that upheld the plaintiff’s right to erect a creche on Scarsdale public property, this result is without precedential value except in the Second Circuit.”
DECISION DESCRIBED AS A ‘MIXED BAG’
The split decision was described as a “mixed bag” by Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA).
He said COLPA shared with others in the Jewish community a concern that the Second Court of Appeals decision would not be magnified, in its limited backing by the Supreme Court, “to justify inappropriate activities on the part of government to allow generally at all federal court levels such displays.”
Rapps declared that the lower court ruling simply said that if a township or other governmental entity regularly permits displays by all sorts of groups on its premises, there should not be discrimination against a display “solely because of its religious content.”
He said that the case was really therefore one involving a freedom of expression issue rather than an establishment of religion issue. He also noted that there was a sign on the display in Scarsdale stating specifically that the display was private and had no connection whatever with Scarsdale authorities.
Rapps said he did not know of any other federal circuit court decision contrary to that of the Second Circuit in the Scarsdale ruling.
Jewish community relations agencies had expressed hope for a definitive ruling, in the Scarsdale case, on the church-state issue of such public displays. Last March 5, the Supreme Court ruled 5-4 that Pawtucket, R.I. could include a Christmas display on public land in which there was a nativity scene and this did not violate the constitutional ban on separation of church and state.
But the Pawtucket decision was criticized by Jewish and non-Jewish civil rights groups as leaving the church-state constitutional issue unclear. Chief Justice Warren Burger, writing for the majority, declared there was no significant difference between the Pawtucket display and a showing of such “masterpieces” as the depiction of the birth of Christ and other “explicit Christian themes and messages” in “publicly supported art galleries.”