Creche moving to borough building in Canonsburg
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The nativity scene in front of the Canonsburg borough building has withstood wintry weather and the criticism of at least one resident, who complained the display was "disrespectful" to the borough's non-Christians, which prompted its relocation.
But could it stand up to the scrutiny of a court?
That was the question the borough council grappled with at a meeting Monday night, when council members voted unanimously to move the nativity scene to the front of the borough building and to install other secular holiday symbols, such as Santa Claus, Mrs. Claus, snowflakes and candy canes.
The creche, which is owned and installed by the Knights of Columbus, was placed on private property last week after resident Megan Hartley wrote a letter to the borough saying she found the display to be "disrespectful" to the borough's non-Christians. After consulting with the borough solicitor, manager Terry Hazlett made the decision to relocate the creche to avoid a lawsuit.
The relocation prompted an uproar from residents, and the borough building was inundated with calls from protesting people.
Ms. Hartley, who could not be reached for comment, did not threaten a lawsuit, nor has anyone else.
Nonetheless, council members were concerned. At the meeting, council member A.J. Williams, who said he researched the issue with other residents, presented a possible solution that might provide the borough a line of defense against litigation. In the U.S. Supreme Court case Lynch v. Donnelly (1984), the court ruled that a nativity scene was constitutional on public property because it was part of a holiday display that included secular holiday symbols, such as reindeers and dancing bears. Essentially the court said if you're going to make room for baby Jesus, you have to leave space for Santa Claus, too.
And in a case that hit a little closer to home -- Allegheny County v. the American Civil Liberties Union -- the court said in 1989 that a creche inside the county courthouse endorsed Christianity and therefore was unconstitutional. But, in the same case, a menorah displayed outside was deemed constitutional because it was next to a Christmas tree, considered a secular symbol.
So, proposed Mr. Williams, the borough could move back the creche "with the addition of secular items to bring it to acceptable displays."
Sara Rose of the ACLU said courts determine whether nativity scenes violate the Establishment Clause -- the separation of church and state -- on a case-by-case basis. And the precedent set by the Supreme Court has been very problematic, she said. Courts could literally find themselves counting the number of reindeer in a display to ensure there are enough non-religious symbols.
"You can't really know whether [the display is] sufficiently non-religious so that it doesn't violate the Establishment Clause without looking at everything in combination," she said. "It makes it very difficult ... some people call it the 'three reindeer test.' "
Brad Tupi, a Pittsburgh attorney who spoke in support of the creche at the council meeting, agreed that the standard created an unworkable scenario for municipalities facing the dilemma.
"Since the Lynch case, some of the courts have been preoccupied with ... how many reindeer do you need to secularize a Christmas display?" he said.
Ms. Rose said some municipalities have gone so far as to replicate the display that led to the lawsuit in Lynch v. Donnelly, since the Supreme Court has already deemed it constitutional.
But, she advised, municipalities could avoid the legal headache altogether if they stuck to secular holiday displays.
Because the problem with a nativity scene, while it may pass a legal test, is that "it still excludes people," she said. And, she pointed out, because the creche has to be displayed among Santa Claus and reindeers, "it takes away the religious significance of the symbol that people are trying to include."
She said a municipality can get caught up in counting its dancing bears or candy canes, but the important thing is "you don't want to make some people who may not share the majority faith feel like they're outsiders in their own community."
But Mr. Tupi, who volunteers with the religious freedom group Alliance Defense Fund, disagrees with the entire premise that religious displays should be "secularized" if they are to remain on public property. He believes a creche should be allowed, even if it's not in the context of other holiday items. And he thinks the Supreme Court has misinterpreted the intent of the Establishment Clause in the First Amendment,
"I think under an original intent understanding of the First Amendment, there would be no need to secularize a nativity display any more than there is a need to abolish the holiday of Christmas," he said.
Mr. Tupi offered the borough assistance through the Alliance Defense Fund if it is sued.
And ultimately, council members decided it would be worth it to stand their ground if there was a lawsuit.
"The residents of Canonsburg have never taken a back seat to a fight," said council President Joe Milioto.
First Published December 16, 2010 6:34 am