HEAVEN HELP US: THE NATIVITY FLAP IS BACK

There are only 129 days left until Christmas, so what better time than now to fall into the annual Nativity Scene Trap?

This, of course, is the annual ritual in which the religiously challenged among us find ourselves linked with Satan, godless immorality, homosexual Boy Scout leaders, famine, plague, drugs, the ACLU and Ted Kennedy, not necessarily in that order. Our sin: advancing the politically outdated notion that the constitutional separation of church and state was actually meant to keep religion and government separated.

The trap is baited with one of the most sacred and beautiful expressions of all time — the Nativity scene depicting the birth of Jesus — which is strategically targeted for placement in the only possible forum for which we wouldn't all die fighting for its free-speech protection: taxpayer-funded, presumably nonsecular public facilities.

Their side wants the baby Jesus displayed proudly in City Hall or some such place. Our side says no, that's not the proper forum for any sort of religious expression. They call us infidels, we call them zealots, blah blah blah blah blah.

Most people don't give a flip about it — the holidays are supposed to be about stress, anger and rampant materialism, not politics, for crying out loud — so the Nativity-scene war is waged between a relatively small group of religious activists on the political right and an even smaller band of church-state separationists on the other side.

I hate this issue.

But it's back, right smack in the middle of August, because on Monday the 8th U.S. Circuit Court of Appeals reversed a District Court ruling that had prohibited the city of Florissant from displaying a Nativity scene in its civic center.

Florissant city attorney John Hessel said he expects the large display, which includes "Season's Greetings" signs, reindeer and other secular symbols, to be back this Christmas.

The ACLU had filed suit successfully on behalf of a Florissant resident, pediatrician Scott Weiner (a Jewish fellow married to a Lutheran, according to a 1998 Post story), who objected to the display as a "message of exclusion."

"I wish the message of unity would be the message of Christmas," Weiner told the Post. "Religion is too important to be left to the government."

That makes sense to me, but not to the 8th U.S. Circuit Court of Appeals, so brace yourself for Nativity-scene battles in Florissant and, most likely, other local communities. Look for more traps than usual this holiday season.

As for the law, it's murky at best, dating back to two 5-4 U.S. Supreme Court decisions, in 1984 and 1989, that softened the church-state barrier without eliminating it altogether. Depending on which lawyer you ask, it appears that the major test is whether a religious display on public property is a government "endorsement" of one religion (which you can't do) or a benign exhibit of both religious and nonreligious symbols (which is allowable).

"The city of Florissant's intention was to express season's greetings for the holidays, with both religious and secular items, and the court upheld its right to do that," Hessel told me. "There hasn't been one case at the federal appellate level or at the Supreme Court in which the courts haven't supported this position."

As you might expect, ACLU lawyer Sally Barker, who plans to ask the court for a reconsideration, had a different analysis.

"This is a disappointing decision, for two reasons," Barker said. "First, it gives us no guidance about the meaning of the Missouri Constitution's requirements for separation of church and state, which are stricter than the U.S. Constitution. Second, it wrongly equates a display in which the crèche is the focal point and there are no symbols of other religions with a display celebrating religious diversity, which the Supreme Court has given approval."

Hessel counters that, on behalf of the city, he offered the ACLU inclusion of a menorah, a Jewish symbol, in the display. But he also says that it's the nonreligious symbols that are the key to keeping the display within the Supreme Court's guidelines.

The battle, it seems, will turn on a judgment call of whether a religious display is sufficiently diluted with nonreligious items or those of another religion so as to avoid being an "endorsement" by a city. Here it's worth turning — as U.S. District Judge Catherine Perry did in her overturned ruling — to the words of one of the Supreme Court justices who made the 1984 ruling possible, Sandra Day O'Connor:

A display cannot "send a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Now try a common-sense test. Say you're a Muslim or a Jew or an atheist or some other non-Christian, and you see, in a heavily Christian community, a holiday display at the civic center featuring the birth of Jesus. But there's Frosty the Snowman and some cute reindeer (presumably your nonsectarian representatives), and the sign merely says "Season's Greetings."

Feel like an outsider, perhaps? Maybe, say, like a Christian would feel in a heavily Buddhist community, seeing holiday religious displays featuring Buddha, but with Frosty and the reindeer nearby?

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