Nativity scene is too religious for New York City schools

The US Supreme Court has declined to enter the fracas over what some conservatives are calling the war on Christmas.

Without elaboration, the court issued a one-line order on Tuesday refusing to take up a potentially important church-state case concerning the use of religious symbols in public school holiday displays.

At issue in Skoros v. City of New York was whether the city's public school system is impermissibly promoting Judaism and Islam while conveying a message of disapproval of Christianity. School rules allow the Jewish menorah and the Muslim star and crescent in multireligious holiday displays but not nativity scenes depicting the birth of Jesus.

The case had been relisted on the high court's private conference calendar seven times in recent months, raising expectations that the justices were taking a close look at the issue.

"We are obviously disappointed," says Brian Rooney of the Thomas More Law Center in Ann Arbor, Mich., which was urging the court to take up the case. "What this says is the [war on Christmas] is ongoing. It is going to continue festering state by state, county by county, and city by city."

While the policy, written with the help of city lawyers, bars nativity scenes, it allows depictions of Christmas trees to represent the Christian celebration of Christmas.

"We are not celebrating the birth of an evergreen tree," Mr. Rooney says. "We are celebrating a historic religious figure's birth that is recognized by the nation and every state in the Union."

The city says its policy treats all religions consistently by excluding "depictions of deities, religious texts, or scenes of worship such as a Christian nativity scene," says Leonard Koerner, a lawyer for the school district, in his brief to the court. "As the Christian nativity scene explicitly depicts the Christian deity [the baby Jesus] as the center of a scene of worship, it falls on the wrong side of the line."

Andrea Skoros, the mother of two sons attending public elementary schools in New York, took exception to what she saw as a slight to the Christian faith. She filed a lawsuit in 2002 claiming the school policy "impermissibly promoted and endorsed the religions of Judaism and Islam, conveyed the impermissible message of disapproval of Christianity, and coerced students to accept the Jewish and Islamic religions."

The suit said the school policy violated the First Amendment's Establishment Clause, which bars government from favoring one religion over any other.

Mrs. Skoros, a Roman Catholic, said the school policy was infringing upon her right to control the religious upbringing and education of her children.

A federal judge disagreed and upheld the school policy. A divided appeals court panel affirmed that decision.

In asking the Supreme Court to take up the issue, Skoros's lawyer, Robert Muise of the Thomas More Law Center, said the school policy disfavors Christianity. "Why is the menorah – a symbol of a miracle that is central to the Jewish faith – any more or less religious than a simple scene of the nativity, which is a historic event?" he asks in his brief.

Mr. Muise urged the court to use the case to add clarity and certainty to its Establishment Clause jurisprudence. He said the justices should jettison their so-called endorsement test in favor of a more workable constitutional standard.

New York City's school policy says in part: "Holiday displays shall not appear to promote or celebrate any single religion or holiday." It says such symbols must be displayed together to reflect the diversity of beliefs and customs among city residents.

There are more than 1 million children in the city's school system. They speak 140 different primary languages, including Spanish, Chinese, Russian, Urdu, Bengali, Haitian-Creole, Arabic, Korean, Albanian, French, Punjabi, and Polish.

"The primary purpose of all displays shall be to promote the goal of fostering understanding and respect for the rights of all individuals regarding their beliefs, values, and customs," the city policy says.

At the same time the policy seeks to avoid the promotion or endorsement of any particular religious faith. "Display of the crèche, as a representation of the birth of a figure central to the Christian religion, and others worshiping Jesus Christ as the son of God, is not permitted by [city] guidelines," Mr. Koerner writes.

Not all Christians identify Jesus as God.