Supreme Court Under Sharp Attack by Jewish Organizations for Its Nativity Display Decision

Initial Jewish civil and religious rights agency reactions today to the sudden shift by the Supreme Court in ruling that a city may present a Nativity scene as part of an official Christmas display without violating the Constitution contained some of the sharpest criticisms ever voiced by such agencies against the highest court of the land.

In a 5-4 decision, the Supreme Court handed down yesterday a ruling that, as part of an official Christmas display by the city-owned creche in Pawtucket, R.I., its nativity scene did not violate the church-state separation requirement.

Experts said the ruling on the permissable boundary between government and organized religion in the United States significantly shifted that boundary in favor of religion. The decision marked the first time that the Justices — though admittedly by the narrowest of margins — have permitted a government officially-sponsored display that is explicitly and exclusively Christian.

CERTAIN TO ENCOURAGE YULE DISPLAYS

The decision, Lynch v. Donnelly, the experts said, is certain to have a substantial effect in encouraging official Yule displays in public places. Uncertainty and increasing litigation has developed in recent years over the constitutionality of officially-sponsored Nativity scenes, with Jewish organizations, whatever their religious orientation, registered in opposition.

The three-year-old suit over Pawtucket’s creche prompted most Rhode Island communities to cancel their Christmas displays.

The dissenting opinion left it uncertain whether the Supreme Court would have sustained the constitutionality only of a creche, or of another religious symbol, such as a cross, which Jewish organizations have indicated they would consider equally unconstitutional.

A suit involving a display of only Nativity figures, in a public park in Scarsdale, N.Y. is now before the Federal Court of Appeals for the Second Circuit in Manhattan.

Chief Justice Warren Burger, writing for the majority, declared that “admittedly” the Nativity scene in Pawtucket “is a reminder of the origins of Christmas.” But, he added, there was no significant difference between such a display and a showing of such “master-pieces” as the depiction of the birth of Christ, the Crucifixion, and other “explicit Christian themes and messages in “publicly supported art galleries.”

The 5-4 decision overturned rulings by a federal district court and a federal appeals court, which had ruled that the Pawtucket creche amounted to an official doctrine and was accordingly banned by the First Amendment clause prohibiting an official establishment of religion.

THE DISSENTING OPINION

Associate Justice William Brennan declared, in the dissent, that the maintenance and display at public expense of a symbol as “distinctively sectarian as a creche” should be viewed in the light of the proposition that a creche “is best understood as a mystical recreation of an event that lies at the heart of the Christian faith” and “simply cannot be viewed as playing the same role that an ordinary museum display does.”

Brennan denounced the action by Pawtucket as “a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority.”

Pawtucket had included the life-sized creche in its Christmas display for 40 years. A group of Pawtucket residents, represented by the American Civil Liberties Union, challenged the creche, but not the rest of the display, in a 1980 lawsuit, winning in the two lower federal courts.

Burger declared the lower courts were wrong in “focussing almost exclusively on the creche” rather than the city’s entire, “largely secular” Christmas display, which, he asserted, engenders a friendly community spirit of good will in keeping with the season.”

REACTIONS BY JEWISH AGENCIES

That “friendly community spirit of good will” was notably absent in the vigorous initial comments today from the Anti-Defamation League of B’nai B’rith; the Union of American Hebrew Congregations (UAHC), the association of Reform synagogues; and the American Jewish Committee.

Seymour Reich, chairman of the ADL civil rights committee, said the Supreme Court ruling “undermines the time-honored First Amendment principle that government and religion should be kept separate from each other.”

In unusually strong language, referring to the Supreme Court, Reich declared the decision was “a divisive one because it provides official sanction for the religious beliefs of one faith over that of other citizens. Such government involvement is the very thing the Founding Fathers strove to eliminate in erecting the wall of separation through the Bill of Rights.”

Rabbi Alexander Schindler, UAHC president, declared that the decision “upsets long-standing tradition” and “is a defeat not only for church-state separation but for the very principle of religious freedom in our country — and thus for the cause of religion itself.”

Samuel Rabinove, legal director of the American Jewish Committee, noted that in a friend of the court brief in the case, filed jointly with the National Council of Churches of Christ, “we expressed our belief” that erecting a nativity scene each Christmas “was not a proper function of a municipality.”

Rabinove said that the ruling had not changed “our view, as well as that of the National Council of Churches, that citizens of all faiths in America enjoy countless opportunities to express their religious beliefs and to pursue their religious practices without hindrance. There is simply no need to enlist the machinery of government for these purposes.”