Revisiting The Reindeer Rule

By Alain L. Sanders

The trees are up, the holiday lights are ablaze in towns across the country, and this week menorah candles will be burning in many a storefront and city square to celebrate Hanukkah. But at two public buildings in Pittsburgh there will be no creche and no holiday candelabrum this year. The religious symbols have been snuffed out as a result of a federal court decision, now on appeal before the U.S. Supreme Court, that has reignited the battle between forces % insisting on strict separation of church and state and those pressing for greater accommodation.

Earlier this year, in response to a suit brought by the American Civil Liberties Union and a number of private citizens, the Third Circuit Court of Appeals halted a seven-year custom in downtown Pittsburgh. The seasonal Nativity scene, erected by the Holy Name Society of the Pittsburgh diocese, was barred from the Allegheny County courthouse, where it had adorned the grand staircase of the building's rotunda. Also banned was an 18-ft. menorah displayed a block away at the front of the City-County building and sponsored by Chabad, the national organization of Lubavitcher Hasidic Jews. "The city viewed the display as a nice gesture consistent with the holiday spirit," laments George Specter, one of Pittsburgh's attorneys. But last week the Supreme Court rejected Chabad's emergency request for it to lift the ban pending its review of the case early next year.

The Pittsburgh dispute invites the high bench to revisit one of its most controversial and opaque rulings. In a 1984 case from Pawtucket, R.I., the Justices upheld the constitutionality of a town-supported creche in a display that included reindeer, Santa's house and candy-striped poles, saying the overall tableau had a "secular purpose" and "effect." Ever since, lower courts have struggled to apply what has come to be ridiculed as the "reindeer rule." At issue: how much secular camouflage is required to sneak a publicly sponsored Nativity scene past the First Amendment bar on an "establishment of religion."

"The lower courts have been schizophrenic on the issue," says Colleen O'Connor of the A.C.L.U. So far, three federal appellate panels have held that creches not "subsumed by a larger display" of secular items are not permissible at city hall. But another federal court ruled that a creche can stand alone on land deemed to be a "public forum." In Chicago last month, a judge decided that no more than three religious symbols at a time may be exhibited at the Daley Center Plaza, and for no longer than 14 days. Complains Allegheny County attorney George Janocsko: "The cases are elevating trifling details and making them matters of constitutional significance." The legal web has prompted officials to devise ingenious strategies for maintaining holiday displays. Small plots of city properties have been sold to private groups, as in Dearborn, Mich., or declared public parks, as in Downey, Calif., in order to erect creches.

"It is within the right of any religion to express its beliefs publicly with the accommodation of the government," asserts Rabbi Yehuda Krinsky of Chabad. "Putting up menorahs is a sharing of values with others." Beyond Pittsburgh, his 100,000-member organization has been building menorahs from Washington's Ellipse to San Francisco's Union Square, almost anywhere a reindeer might be lurking. But most Jewish groups oppose the displays. Says Sam Rabinove, legal director of the American Jewish Committee: "We're all in favor of menorahs and creches, but not in public buildings." Mainstream Christian groups agree. "We consider the display of a Christian religious symbol by a municipality to be an affront to persons of other faiths or of none," says Dean Kelley, director for religious liberty at the National Council of Churches. "As for a menorah, two wrongs don't make a right." Others insist that religiously inspired symbols should be permitted when they reflect U.S. tradition. "As long as we're going to have Christmas as a national holiday," says Fordham University law professor Charles Whelan, "it makes sense to allow the display of a creche." But as Columbia University law professor Vincent Blasi points out, there is a catch. "In order to uphold the use of religious symbols," he says, "you have to officially describe them as having a secular meaning." Such a redefinition, says James Andrews, chief executive of the Presbyterian Church (U.S.A.), "amounts to the trivialization of the Christian faith."

How the court will rule in the Pittsburgh case is a matter of great speculation, but both sides hope for something clearer than the 1984 decision. Otherwise, the legitimacy of every municipal creche will have to continue being evaluated on its own peculiar merits -- or the quantity of its reindeer, which leaves jurisprudence on the horns of a dilemma.

With reporting by Sheila Gribben/Chicago and Andrea Sachs/New York