Religious holidays should be lived, not litigated

IF the grinch stole Christmas, the cr`eche keeps taking it to court. New cases on the legality and constitutionality of erecting religious displays on public property are wending their way through the legal process.

The United States Supreme Court has generally upheld the principle of separation of church and state on this issue. In 1984, however, it made an important swerve off course, with an ``accommodation'' for religion in Lynch v. Donnelly. In this Pawtucket, R.I., case, the justices allowed the erecting of a cr`eche in a downtown park, on grounds the Nativity scene was only a part of a larger display of holiday symbols, including Santa Clauses and Christmas trees.

According to Mitchell Tyner of the General Conference of Seventh-day Adventists, the Lynch decision has since been interpreted in various ways by lower courts - with some jurisdictions ruling similar displays unconstitutional.

Now in a pair of cases from Pittsburgh (Allegheny County), the nation's highest court has an opportunity to settle the cr`eche question. Even more important, the justices may use this matter, County of Allegheny v. ACLU, to reinforce - or change - the court's philosophy of how the First Amendment's ``establishment clause'' is to be applied.

Since the early 1970s, the court has used the so-called Lemon test as a yardstick. A challenged act must have a secular purpose and a secular effect as well as avoiding excessive church-state entanglement to pass constitutional muster. The rationale has been that government must take a neutral position about religious matters.

More recently, however, the justices have edged toward a stance of accommodation for religion where an act may be allowed as long as there is not a preference of one religion over another.

One of the Pittsburgh cases centers on a Nativity scene depicting the birth of Jesus, which has been displayed since 1981 in City Hall during the Christmas season. The other one concerns an 18-foot menorah that stands outside an Allegheny County office building during the annual celebration of Hanukkah.

Two years ago, the American Civil Liberties Union filed suits against the city and county, contending that these religious displays violated the ban on establishment of religion by government. A panel of the US Court of Appeals for the Third Circuit agreed, holding earlier this year that the city and county had ``tacitly endorsed Christianity and Judaism.''

Church-and-state separatists say that if the Supreme Court upholds the Pittsburgh displays, the decision could spell a key change in approach to First Amendment religious issues.

Robert Maddox, executive director of Americans United for Separation of Church and State, suggests that if the court now scraps its earlier standard - the Lemon test - ``everything in the church-state area is up for grabs.''

Recent changes on the court indicate that the justices may now be willing to allow even greater public accommodation for religion.

Certainly, seasonal displays like the cr`eche and menorah bring inspiration to those who embrace their symbolic meaning. Government sponsorship, however, serves no purpose but to offend those of differing persuasions.

Churches would do well to erect their Nativity scenes on their own property, as would synagogues with a menorah.

Religious holidays need no more controversy. They should be lived, not litigated.

A Thursday column