fter years of protest and litigation, it may be the end of the legal road for Massachusetts American Atheists State Director Gil Lawrence Amancio. Even though he has won his federal suit against the town of Somerset, Mass. for displaying a nativity creche outside the Town Hall during Christmas, Amancio is now confronted with a legal dilemma. Under threat of appeal from the government, Amancio -- represented by the ACLU -- could lose in an appellate court given the current judicial and political climate, or the City can simply continue to modify the Christian Nativity scene -- literally adding some candy canes and plastic Santa Claus statues -- thus rendering it sufficiently "secular" to pass constitutional review. Worse yet, the ACLU attorneys who represented the Atheist Director for the last two years say that they will settle with the town fathers in exchange for an agreement to receive $35,000 in legal fees and a pledge to drop any subsequent litigation over the creche as it is displayed.

    It's a less-than-spectacular end for a legal fight which began in 1997 when Amancio asked that the traditional Nativity display (which had graced the front of the Town Hall for the previous six decades) be relocated off government property to the front of a Baptist Church across the street. When the city refused, Amancio filed suit in U.S. District Court, saying that the creche clearly violated the separation of church and state and conveyed to a reasonable observer government endorsement of Christianity. Amancio prevailed; but rather than remove the display or relocate it, town officials resorted to what has become a proven ruse -- they added "secular" holiday kitsch items, including an enormous plastic Santa Claus borrowed from the local fire station.

    Amancio branded the move a clear deception and a shabby attempt to secularize a Christian religious icon -- the Nativity. In addition to the giant "Santazilla," though, officials also began experimenting with a mix of other items including a Jewish menorah, Christmas trees and strings of holiday light.

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

    Trouble is, though, that the ruse might have worked. Attorneys on both sides opine that the display could now be sufficiently "secularized" to pass constitutional muster. And even if Amancio wins an appeal,courts are becoming stingy when it comes to reimbursing attorneys for their legal fees. As a result, on Wednesday night, the ACLU threw in the towel, and decided on a settlement with the government of Somerset which read, in part, that the organization agreed "in letter form, despite their reservations, they do not intend to challenge in a lawsuit any future Town holiday display which is in substantially the same form as the display erected by the Town in 1998."

    Total ACLU legal costs ran to nearly $47,000. Somerset agreed to the partial settlement because it simply did not want to risk losing the suit, and have to absorb the costs of continued litigation.

    Result -- a draw. Almost.

    Amancio refused to be a party to the settlement. "This is outrageous," he told AANEWS in an interview earlier today. "The town's position is that they want to keep the Christian creche, and now they've got what they wanted, all despite the court's decision. The only thing that has happened is that other stuff like Santa and plastic reindeer have been added to the display to secularize it."

    "I didn't settle this or sign off or give either the ACLU or the town of Somerset anything," Amancio added. "I'm still free to sue, but I'm frustrated and disappointed. You throw up a bunch of Santa Claus figures or a Jewish symbol and the court say you have enough 'diversity' to secularize it.

   Amancio also blasted the court for what he termed "providing 'instruction manuals' for governments that want to erect religious displays on public property."

    "They start with a Christian Nativity scene and add just enough candy canes and lights and other stuff to where some court finds it acceptable. It looks like the original judge in this case just gave Somerset instructions on what exactly they had to do in order to keep the creche there, like move it off to the side a bit and put up some nonsectarian symbols."

"In addition to the giant Santazilla, though, officials also began experimenting with a mix of other items including a Jewish menorah, Christmas trees and strings of holiday lights...?

    "If you minimize the strong religious message just a little bit, it suddenly becomes constitutional," Amancio lamented.

    Indeed, the "term "instruction manual" may best reflect the tenor of many court rulings which cumulatively have altered the interpretation of the establishment clause to the point that governments are successfully defending the display of Christian and other religious symbols on public property, especially during holidays. On Monday, for instance, the 8th U.S. Circuit Court of Appeals upheld a presentation of the Christian Nativity and a Jewish menorah in front of the Florissant, Missouri Civic Center. The court's ruling was based largely on one portion of the U.S. Supreme Court's 1989 decision in ALLEGHENY v. ACLU, which found that a particular Nativity display was in a "setting that negates the endorsement effect (and) includes things such as location and surrounding objects."

"I think that Somerset will start gradually taking away the plastic Santa and other things which they say 'secularizes' the display. They'll try to operate just barely within the technical limits of the law, or what they think they can get away with to make sure that the Nativity scene stays up..." -- Gil Amancio, American Atheists

    In order to pass constitutional muster, governments and religious groups which desire to place sectarian icons on public land must avoid the "appearance" of government endorsement of religion, or the sense that one religion is being endorsed over another. To do so requires legal maneuvering. The display should avoid "centrality" -- preferably by being to one side of a larger setting -- and, if possibly, not be conspicuously linked to an obvious symbol of government authority like a City Hall (although this requirement, too, can be circumvented). Other religious symbols must be included so as to give the impression of an ecumenical hodgepodge. Finally, the display can be "secularized" by throwing in holiday kitsch items such as plastic Santas, reindeer, wreaths, lights, and greeting signs that reflect a nonsectarian message like "Happy Holidays."

    Not all religious groups support this compromise, though. A representative of the National Legal Foundation expressed mixed feelings about the Missouri ruling, saying that the "plastic Santa rule" was "silly."

    But something else is happening on the litigation front, and Amancio's case may be a bellwether. Filing suit against persistent violations of the establishment clause is a costly and time-consuming enterprise, and with rising legal expenses, even cause groups may choose to cut their loses and become more selective in choosing cases. "It's like trying to put out an endless number of brush fires," said Ellen Johnson, President of American Atheists. "There seems to be a sense among religious groups and local governments that they can get away with just about anything, or will try to get away with something until somebody complains and makes the effort to raise money and hire a lawyer." She added, "Thanks to the 'instruction manuals' and biased ruling from the courts, it will become increasingly difficult to uphold the separation of church and state, especially when it comes to trying to stop religious displays on public property."

    Meanwhile, Amancio faces an uphill battle, in part due to the premature end of at least this portion of his legal case. "I think that Somerset will start gradually taking away the plastic Santa and other things which they say 'secularizes' the display," he declared. "They'll try to operate just barely within the technical limits of the law, or what they think they can get away with to make sure that the Nativity scene stays up."

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