An Unseasonal Decision

SOMETIMES you wonder why we cannot just be little bit more spontaneous and relaxed: why we cannot, in the spirit of the Christmas season, simply overlook a city government's decision to set up a creche, on public ground. Indeed, when lawyers from the American Civil Liberties Union (ACLU) and the National Council of Churches brought suit against the city of Pawtucket, R.I. for violating the separation of church and state by putting up a creche, public sympathy ran low. Even the local B'nai B'rith group reportedly asked the ACLU lawyer, "it's been there so long, why did you even bring it up."

The answer is simple. Religion is for many a matter of the deepest importance. And when governmental actions signal a laxity toward, or even disregard of, the plurality of religious beliefs, the time has come to stop them.

Unfortunately, the Supreme Court tailed to do just that In a five to four decision, the high court found the government sponsored natively scene constitutional, in a decision that is surely one of the most poorly conceived rulings in years. The majority opinion is a masterpiece of ambiguities that side-step the issue and side-track the argument. Writing for the majority. Chief Justice Warren Burger displays either a naivete about religious symbols that strains credibility, or an oversensitivity to conservative political pressure.

Perhaps the court was saying that this is a ridiculous issue--that there is something wrong with a society that can't just relax about a creche surrounded by Santa Claus and reindeer. Why not find some good will in the symbols rather than governmental sponsorship of a religion? The majority opinion contends that "The display engenders a friendly community spirit of good will in keeping with the season." But good will at what price? As the dissent points out, Pawtucket may have a valid "secular reason" (good will and increased retail sales) for setting up the display, but are life-sized figures of Jesus. Mary, Joseph, angels, shepherds, kings and animals the only way to encourage such secular motives? Equally effective would have been the merry Santa scene without the religious accoutrements. The city of Pawtucket, already showcasing enough symbols of the happy season to fill several acres of displays, went on to add a creche--but no menorah or Buddha.

The fight does come off as silly, but what is even sillier is the majority opinion which does not ever really deal with the overt religious symbolism of setting up a creche. It says that the scene is acceptable, because "We are unable to perceive the Archbishop of Canterbury, the Vicar of Rome, or other powerful religious leaders behind every public acknowledgement of the religious heritage long officially recognized by three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is far-fetched indeed."

Perhaps, but by setting up a creche in the overwhelmingly Roman Catholic community of Pawtucket, the city government does seem to come out endorsing a particular religious belief rather than a spirit of good will. "Those who believe in the message of the Nativity receive the unique and exclusive benefit of public recognition and approval of their views," Justice Brennan writes in his dissent. "The effect on the minority religious groups, as well as on those who many reject all religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support." Burger argues that the creche is "passive," but the point is that it is a passive symbol of governmental approval. Even a swastika is technically "passive" when placed in front of City Hall.

The majority side-steps the issue of governmental approbation of a particular religion by drawing faulty comparisons--the nativity scene is no more problematic than providing free text books to parochial schools or setting up displays of religious artworks in publically financed galleries.

What the court seemingly ignores, however, is the distinction between neutrality and overt bias in favor of one religion. When the city gives free textbooks or transportation, it is part of a value-neutral effort on the part of the government to treat all religions equally. Jewish schools can receive the free textbooks as can non-denominational private schools. But when the city makes an a priori decision to put up a nativity scene, it is specifically singling out for approval one aspect of one religious celebration from a myriad of beliefs and practices.

Nor does the majority's implication that surrounding the creche with other, strictly secular, symbols negates the endorsement ring true. It's like saying if the city put a cross on the lawn of its City Hall and surrounded it with candy canes, reindeer and polar bears, the cross would no longer signify any real religious endorsement. What if the symbol had been a Star of David or a Koran?

PAWTUCKET is not intolerant, and by all accounts the creche, which had been set up for almost 40 years, was not a symbol of religious oppression in the town. The creche seemed to reflect the majority's sentiment and the minority did not seem to care. Excessive entanglement or approval of a particular religion may not be a serious problem in the Rhode Island community, but there are some places in the United States where setting up a creche would be just one more symbol of a community where it is difficult to be a Jew or an atheist. Places where even the government would find something wrong with you for refusing to say a prayer at the beginning of a city council meeting.

The Supreme Court's decision may not be very important in the grand scheme of things, but it is indicative of a growing laxness on the part of all governmental branches to accept and protect religious plurality. In a rather shocking passage the majority opinion states "we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." The statement seems to symbolize the court's apparent willingness to back down on previously stringent criteria in the face of conservative pressure and the friendliness of the season.

Christmas cheer is a fine thing, but the Constitution is even better.