The Supreme Court takes up the issue of nativity scenes.

Christmas season arrived early at the Supreme Court, where on the second day of their current session the justices heard arguments for and against a state-sponsored nativity display in Rhode Island. The case, Lynch v. Donnelly, promises to be an important indicator of the court’s church-state positioning when a decision comes, sometime before next summer.

In two cases last term, the court upheld the right of state legislatures to employ chaplains. It also ruled in favor of Minnesota’s tuition tax-deduction law for private school students. To some observers, this signals a rethinking among the justices and a willingness to give more weight to considerations such as “longstanding tradition,” as they did in the Nebraska chaplain case. The Christmas créche case also pits tradition against claims of church-state entanglement.

Lawyers who favor the créche’s constitutionality believe it is an inextricable part of Christmas, which is a federally recognized holiday. Removing any hint of Christ’s birth from a Christmas display amounts to “cultural censorship and intellectual dishonesty,” U.S. Solicitor General Rex E. Lee told the court.

Opponents, including a group of Pawtucket, Rhode Island, taxpayers and the American Civil Liberties Union (ACLU), say the life-size display violates all three constitutional tests of religious establishment.

It does so, they say, because, first, the nativity scene has a religious rather than a secular purpose; second, its effect is to “advance religion,” and, third, the government excessively entangles itself with religion by paying for and promoting the display, they say.

This three-part test, used since 1971 to weigh claims of free religious exercise against possible state establishment, was applied differently by the two leading proponents of the nativity scene, adding to the intrigue. William F. McMahon, attorney for the mayor of Pawtucket, argued that the créche adheres to the three-part test because in the larger context of the city’s total Christmas display, any possible religious purpose or effect is nullified.

To put the controversy in perspective, McMahon told the court that the city’s annual display takes up 40,000 square feet and includes the whole range of attendant secular symbols: a lighted spruce tree, a live Santa Claus, stars, bells, a wishing well, snowmen, and a variety of Walt Disney characters. In the midst of all this is a 140-square-foot area with a stable and manger scene that includes wise men, angels, and animals, along with the traditional representations of Joseph, Mary, and the infant Jesus.

Christmas has become “a secular folk festival” in which the nativity theme is interwoven, McMahon said. Emphasizing that Christmas is “a dominantly secular holiday with religious roots and components,” McMahon asked the court, “What is the government [in Pawtucket] doing? It is not promoting religion, it is celebrating Christmas,” and thus it satisfies the Constitution by having a secular purpose and effect.

Solicitor General Lee, intervening for Pawtucket in behalf of the Reagan administration, followed a different line of reasoning that he said makes the three-part test irrelevant in this case. He charged two lower courts, which ruled in favor of the taxpayers and the ACLU, with mandating a “contrived exclusion of religion from our public life.” McMahon, concurring with this, said, “It is impermissible for government to put Christ in Christmas or take Christ out. Strict neutrality requires Christ to be there because of tradition.”

In presenting his case, Lee acknowledged much more readily than McMahon the religious significance of the display. If the court decides in favor of the créche, observers will be waiting to see whether they rely more on Lee’s arguments or on McMahon’s “folk festival” reasoning.

ACLU lawyer Amato A. DeLuca said religious purpose and intent are undeniably part of the créche because of the worshipful attitude of the figures and the implied divinity of Christ.

By backing a uniquely Christian symbol, DeLuca’s brief said, the city of Pawtucket also may be setting itself up for possible political divisiveness among its residents. DeLuca based this argument on the large number of letters Pawtucket Mayor Dennis Lynch has received in the wake of the initial court challenge to the créche in 1981. The letters, many of which were strongly emotional and expressive, voiced considerable support for the nativity display.

DeLuca was peppered with questions from the justices about other instances where government and religion overlap. What about chaplains in state legislatures—found to be legal by the Court in its last term? DeLuca replied that their role is “purely symbolic” and said their prayers merely “draw attention” and serve as “a formalized way of commencing a session.”

What about the elaborate stone sculptures on the walls of the Supreme Court chamber itself that represent the Ten Commandments? asked Reagan appointee Sandra Day O’Connor. DeLuca said they are constitutional because they represent the origin of law. O’Connor shot back with what may be a telling indication of how she, at least, may reason. The state of Rhode Island, she reminded DeLuca, argues likewise that the créche symbolizes the origin of Christmas.

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