Officials in Somerset, Massachusetts are bringing in a 45 foot Santa Claus and other seasonal kitsch in hopes of salvaging a Christian nativity scene. Are court rulings being used as "instruction manuals" to keep religion in the public square?

fficials in Somerset, Massachusetts announced last night that they will defy a federal court order, and proceed with plans to erect a Christian nativity scene in front of the Town Hall. This follows a victory earlier this week by American Atheists Regional Director Gil Lawrence Amancio, who with the help of the ACLU successfully challenged the display as an unconstitutional endorsement of Christianity, and a violation of the First Amendment. Judge Richard D. Stearns of the US District Court of Massachusetts cited landmark Supreme Court cases, including LEMON v. KURTZMAN (1971) and EVERSON v. BOARD OF EDUCATION (1947); he ruled that the "centrality" of the nativity creche "conveys to a reasonable observer the constitutionally forbidden message that the Town of Somerset officially supports Christianity..."

    As a meeting last evening in Somerset, though, the three Town Selectmen opened a public gathering at the government hall, then promptly announced that they were going into a secret "executive" session. After approximately 25 minutes, they reconvened in front of the public and a battery of news cameras, an announced that they would erect the nativity scene and, if necessary, appeal the Amancio case.

    Knowing that they have lost a key battle to maintain the nativity scene, though, the Selectmen now propose to "secularize" the Somerset religious display by the addition of non-religious holiday symbols. Town leaders announced that they would be relocating an enormous 45-foot high Santa Claus from the Somerset Fire Department building to the Town Hall -- a distance of approximately a mile, according to AA Regional Director Gil Amancio. Somerset will also be using a Jewish menorah about 8-feet in height, as well as several more Christmas trees and strings of colored lights in hopes of rendering the nativity capable of passing constitutional muster.

    "They're hoping that Santa Clause and the other items will detract from the 'centrality' of the nativity scene so that they can sneak it under the wire of the First Amendment," observed Mr. Amancio. "This is just another ploy to try and 'save the creche' and continue to make what is clearly a religious statement."

   The strategy of trying to "secularize" a religious display on government property, though, by adding layers of other holiday symbols -- or gratuitously including symbols from other religious faiths -- has not been looked upon favorably by the courts. Last year, for instance, the City of Jersey City, New Jersey failed in its attempt to "secularize" a religious display that included a Christian nativity and menorah by hastily including a snowman figure and plastic Santa Clause. A brief filed by the American Civil Liberties Union challenging this symbolic amalgam observed, "however confusing the presence of a snowman in Bethlehem may be from a canonical perspective, a reasonable observer ... would inevitably characterize (Frosty, Santa and the sleigh) for what they are -- attempts at evasion of constitutional prohibitions through superficial secular tokenism.

   Other rulings, however, have suggested that the further jurists stray from the establishment clause and the need to avoid state-church entanglement, the more confusing court decision can become. The US Supreme Court ruled in split 5-4 decision in LYNCH v. DONNELLY (1984) that a Christian creche in Pawtucket, Rhode Island had been "secularized" by the inclusion of other non-religious symbols. The city owned a manger scene, but mixed in a plastic Santa, 40-foot high tree, candy canes, a "wishing well," animated clowns and other seasonal kitsch. Justice Warren Burger observed that the overwhelming presence of such seasonal items eroded "whatever benefit there (was) to one faith or religion or to all religions."

   So, how does LYNCH v. DONNELLY differ from the cases in Somerset or Jersey City? The former cases involve clearly retroactive efforts to "repair" an unconstitutional religious display, in hopes of finding some way to salvage and maintain a creche. Some jurists thus propose that the intent betrays a religious purpose, and that the candy canes, Santa and other items are incidental.

    If anything, the confusions stems from efforts by some courts to avoid a strict interpretation of the establishment clause. In the more blatant cases, court rulings become "instruction manuals" for how governments and religious groups may blur legal issues and even achieve their objective of having a sectarian symbol on public property -- "with enough candy canes," of course.

    Mr. Amancio's victory, while a cause for celebration by Atheists and state- church separationists, is unfortunately also fueling a backlash of threats and hostility. Gil reports that he has been receiving threatening phone calls. Earlier this week, a broadcaster in Boston used a segment of his program to comment on Amancio's court win, and suggest that listeners "send him a Christmas card." The remarks were made by Gary LaPierre, co-anchor of the morning news program on WBZ radio. "Gary is an angry young man today!!" notes the lead-in to the transcript of LaPierre's broadcast on the stations internet web site. La Pierre remarked...

    "And just one more, speaking of getting over it. The Atheist in Somerset, Mass. who was successful in forcing the town firefighters to take down the nativity scene in front of town hall. And Judge Richard Stearns, shame on you too. The Atheist who doesn't believe and apparently doesn't think anybody else should either, destroys a 60-year tradition in Somerset. What a shame. His name by the way is Gil Lawrence Amancio in Somerset just in case you'd like to send him a Christmas card."

   According to Mr. Amancio, the law firm which has represented him in the Somerset case yesterday contacted WBZ, asking for a taped transcript of LaPierre's program which is titled "LaPierre on the Loose." The firm also reports that it has received threatening phone calls, although no connection has been established between those calls and Mr. LaPierre's remarks. At the very least, the statement mentioning Mr. Amancio and "send him a Christmas card," is personally directed, and not a discussion of the important constitutional issues involved.

In the meantime, the Town of Somerset is proceeding with plans to defy Judge Stearn's ruling. Somerset was represented by a pro bono attorney in the original case, although it is not known if tax monies will be necessary to finance any subsequent appeal. Amancio says he will continue to oppose the Christian creche display.

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