Amancio Wins Nativity Suit
In Massachusetts
by Conrad Goeringer

November 30, 1998

Atheist Director Wins Judgment Against Massachusetts Nativity Creche

American Atheists Regional Director Gil lawrence Amancio won his battle early today to challenge the constitutionality of a nativity scene displayed in a public park in Somerset, Massachusetts. With the help of the local American Civil Liberties Union, Amancio argued that the creche endorsed a specific religious belief, advanced religion, and thus violated the establishment clause of the First Amendment.

Judge Richard G. Stearns of the US District Court of Massachusetts agreed, and sent word that judgment had been entered in favor of the plaintiff.

The decision is an important one on several counts. When they learned that Amancio was considering legal action last year, town officials belatedly attempted to "secularize" the Somerset display by adding a plastic Santa Clause. The other elements included holiday lights, a large Christmas tree, and a wreath.

In his decision, Judge Stearns cited the Supreme Court's ruling in the Everson v. Board Of Education Of Ewing (1947) case which stated:

"The 'establishment of religion' clause ... means at least this: Neither a state nor a Federal Government can set up a religion. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

Stearns also referred to the important "three pronged" test outlined by the high court in Lemon v. Kurtzman (1971):

"Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, a statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... ; finally, the statute must not foster 'an excessive government entanglement with religion.'"

Despite those guidelines, though, both religious groups and governments have tried to constitutionally sanitize religion-based displays (especially during the Christmas season) by including what are clearly secular symbols and trappings such as lights, Santa Clause statues, plastic candy canes and other holiday items. The tighter interpretations of the First Amendment used by the earlier court shifted during later years, and in Lynch v. Donnelly (1984), Chief Justice Burger, writing on behalf of a 5-4 majority, upheld the constitutionality of a Christian crèche in Pawtucket, Rhode Island when it was "secularized" in that fashion, by the mixing of other non-religious symbols. The city owned manger scene was included with Santa Clause, a 40-foot high tree, depictions of carolers, candy canes, a "wishing well," a banner declaring Seasons Greetings, clowns, a dancing elephant, teddy bear and finally, a robot. The Burger court, in this slim majority, suggested that the overwhelming presence of such holiday kitsch vitiated "whatever benefit there (was) to one faith or religion or to all religions..." Justice Sandra Day O'Connor agreed, arguing that the religious symbolism in Pawtucket was somehow effectively muted by the presence of these other holiday artifacts.

Five years later, though, the Court seemed to change course. In County Of Allegheny v. ACLU, the justices examined a Christian nativity creche erected on the Grand Staircase of the Allegheny County Courthouse in Pennsylvania. The creche had been donated by a local Catholic group, but was decorated with poinsettia plants around the periphery paid for by the county. Justice Blackmun, who had dissented in Lynch, wrote for a new majority and declared that "nothing in the context of the display detracts from the crèche's religious message." He added that because of the lack of overwhelming secular artifacts, and the position of the creche, "(no) viewer could reasonably think that it occupies this location, without the support and approval of the government."

Another question examined in Allegheny was an 18-foot Chanukah menorah, placed outside the County-City Building next to a 45-foot high Christmas Tree. Again, this menorah was owned by an outside group, although the city stored, erected and dismantled the display each year. The court ruled that while the menorah "is a religious symbol," it's message "is not exclusively religious," and had both religious and secular dimensions.

Unfortunately, despite the firm guidelines of Lynch and later Lemon v. Kurtzman, the US Supreme Court and other judicial bodies have relied increasingly on the "context" of these religious displays -- whether or not they are diluted by the inclusion of seasonal and secular items like candy canes and plastic Santa Clause images. There is also a growing emphasis on whether or not a religious display activity happens to "favor" one religion over another, and seeming de-emphasis on whether or not religious belief in general is being promoted.

Back in Somerset ...

Mr. Amancio's case is an important victory, though, because it still holds governments to a high standard in trying to "secularize" what are clearly religious displays. Judge Stearns noted, "I am constrained to conclude that Somerset's display violates the Establishment Clause because the centrality of its Nativity scene conveys to a reasonable viewer the constitutionally forbidden message that the Town of Somerset officially supports Christianity." Unfortunately, though, even Judge Stearns -- despite the overwhelming admonition of the establishment clause, Lynch, and Lemon v. Kurtzman -- felt compelled to essentially apologize for his constitutional reasoning. He added, at the end of his Order, "I recognize that this decision may seem a cruel blow to a sixty year tradition of celebrating a holiday that apart from its religious significance heralds a universal message of peace and goodwill." He then goes on to argue, "But to insist that government respect the separation of church and state is not to discriminate against religion, indeed it promotes a respect for religion by refusing to single out one or two creeds for official favor at the expense of others."

The Downside: Court Orders as "Instruction Manuals" or "With enough candy canes..."

The court ruling in Allegheny, and even subsequent decisions which have ruled certain religious displays as unconstitutional, may not end up being the best which church-state separations and Atheists might want. Unfortunately, decisions like the current District Court ruling can be interpreted as "instruction manuals" for city governments and religious groups on how to successfully maintain these religious displays. Any group interested in putting up such a display, or maintaining a current one need to:

For Atheists, this reasoning leaves much to be desired. The presence of Jewish symbols at Christmas time, for instance, often reflects a technical ploy to sanitize a Christian religious display. Does it really matter, in terms of the full "three pronged" test of Lemon v. Kurtzman, if other religious symbols from, say, Hindus, Buddhists, Scientologists, Muslims or any other sect, is included? Government may not be "favoring" one religion over another, but such an interfaith display would clearly violate the prohibition of advancing religious belief in general, and would result in "excessive entanglement." The court's flirtation with selective aspects of the Lemon test, and its increasingly narrowed view of how the establishment clause is to be interpreted, suggests that continued vigilance by separationists is required.

At this time, it is not known if Judge Stearns has ordered the removal of the Somerset nativity creche. Although declared in violation of the First Amendment, officials in the town could have the option of secularizing their display with a sufficient volume of candy canes or other items. For Gil Lawrence Amancio, though, this court ruling is "sweet justice" and an important victory for state-church separation.

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