High court ties, so public cr`eches win. Scarsdale appeal loses in 4 to 4 vote, but issue likely to resurface

The United States Supreme Court took another swing at the church-state ``wall'' of separation on Wednesday. But it didn't chip off much mortar. The court's action -- really a standoff -- in a religious symbol case probably guaranteed that the issue will come back to the justices again, perhaps next year in another case.

The 4 to 4 vote establishes no national precedent. And the justices did not announce how they voted or issue detailed opinions.

But the immediate effect of the high court's tie vote is to require the New York suburban community of Scarsdale to provide public land for a privately sponsored Christmas Nativity scene.

The tie -- without the vote of Associate Justice Lewis F. Powell, who was ailing at the time of oral arguments -- results in the upholding of an appellate court ruling that said that permitting a Nativity scene at Christmastime does not unconstitutionally ``advance religion in general or the Christian faith in particular.''

That last phrase has particular significance in Scarsdale, where there is a large Jewish population. Civil rights groups, including the B'nai B'rith Antidefamation League, opposed the cr`eche, arguing that it tended to favor one religion over another and promoted disharmony in the community.

Earlier, a group of local clergy tried to avoid a court confrontation by offering private sites for the annual display. Several other communities across the United States have resolved the issue by rotating Nativity displays among churches from year to year.

Although the cr`eche issue is new to the court, over the past decade most high court interpretations of the First Amendment have declared that any public favoritism of one religious group over another amounts to unlawful entanglement.

But in a Pawtucket, R.I., case last year the Supreme Court split 5 to 4 in deciding that a city-sponsored Christmas display located on private property -- which included religious symbols -- did not violate First Amendment barriers. The court, at that time, indicated that the Pawtucket cr`eche constituted an ``accommodation'' of religion rather than improper intrusion or favoritism.

While Pawtucket city officials had supported the religious display there, local officials came down against the cr`eche in Scarsdale. The village board of trustees banned the Nativity scene. They were then sued by representatives of Roman Catholic and Protestant churches who claimed that their freedom of speech had been limited.

Those favoring the cr`eche cited cases that unheld the right of citizens to engage in ``symbolic speech.'' For example, in a 1981 ruling, the US Supreme Court held that Missouri officials could not deny use of state university facilities to a student religious group. The First Amendment, the court held, made it unconstitutional for the school to discriminate against an organization on the basis of the content of its meetings.

(Since then, Congress has passed the so-called Equal Access Act, which allows religious and political meetings after classes at public elementary and high schools. This highly controversial law is headed for a Supreme Court test.)

In the Scarsdale case, a federal district court considered the Supreme Court's stance on university access. But it still decided to uphold the village board's ban on Christmas displays. By the time the case reached the Second US Circuit Court of Appeals, however, the Supreme Court had made its Pawtucket ruling. Citing this decision, the appeals court said that Scarsdale could no longer rely on First Amendment prohibitions against the ``establishment'' of religion for refusing to permit a cr`eche on public land. That decision now stands as a result of Wednesday's action.

The Reagan administration took an active role in both the Scarsdale and Pawtucket cases, supporting the Christmas displays in friend-of-the-court briefs.

Similarly, the White House is behind so-called ``moment of silence'' periods in the public schools and public aid to private and parochial schools. Both these church-state issues are due for Supreme Court resolution this spring. -- 30 --