- The Washington Times - Friday, December 24, 1999

A federal judge Thursday allowed a Nativity scene to remain with the candy canes, Christmas tree and menorah in front of a Wall Township, N.J., city building, a legal dispute that is as much a part of Christmas as Santa Claus.
The American Civil Liberties Union had requested a sudden "emergency" restraining order to remove the Christian creche, but federal District Judge Alfred M. Wolin said the complaint looked "designed to maximize" media publicity.
The judge said the request failed because of that procedural flaw.
"We were offended by the timing of the ACLU's filing, and obviously, we weren't alone in that regard," said Wall Township Mayor Michael Fitzgerald.
The hearing, which did not rule on the substance of the ACLU complaint about government-funded religious symbols, illustrates the hair-trigger nature of creches scenes of Jesus in a manger in a public place at Christmas season.
To meet the requirements of other court rulings, the township had mixed the creche with other cultural and religious symbols. It was displayed along with banners showing candy canes, a menorah, and the words "Merry Christmas" and "Happy Hanukkah."
It mostly imitated a display format used by Jersey City, N.J., that was ruled constitutional this year by a circuit court of appeals.
The Jersey City display, besides its mix of secular and religious symbols, also had pioneered an official city sign that said it was sponsored as part of a policy to have displays on cultural diversity all year long.
After Thursday's ruling, Mr. Fitzgerald of the township said, "The display will remain the way that it is, and we believe it's not only constitutional, but also proper and in keeping with our yearlong observations of various holidays and cultural traditions."
Kevin Hasson, general counsel for the Becket Fund for Religious Liberty, a nonpartisan, interfaith public interest law firm, argued for Wall Township and said the judge's tone of skepticism was refreshing.
"The ACLU seems to have an obsession with Nativity scenes," Mr. Hasson said. "They lose a case and a few day later file another one."
In February, the 3rd Circuit Court ruled against the ACLU complaint in Jersey City, and three days afterward the ACLU filed a lawsuit against Wall Township for an "unconstitutional" display of the religious symbol.
In this new case to be heard on its substance next year the ACLU represents plaintiffs Eleanor and Randy Miller, who argued in court that the Christian symbol caused them "palpable injuries" by making them "feel less welcome, less accepted, tainted and rejected."
While it is uncertain how many creches appear on taxpayer-supported public lawns, buildings or city centers, legal disputes over them have been occurring since the 1980s often on the question raised by the Millers.
The Constitution states that government may not "establish" religion, and court rulings have added the argument that such exclusive symbols may ostracize taxpayers of a different faith or of no faith at all.
The Supreme Court solution has been to rule that religious symbols may be sponsored on public property if they are mixed with other symbols, both secular and interfaith, so no single religion is established.
This has been called the "reindeer" ruling by the court.
"The Supreme Court has upheld Nativity scenes and a menorah in separate cases, but it has not given the lower courts definitive guidance on claims of this sort," said the Becket Fund's Mr. Hasson, explaining why lawsuits persist.
Mr. Fitzgerald, the Wall Township mayor, hinted at a new legal strategy being taken when he cited the city's "yearlong observation of various holidays and cultural traditions."
Typically, Mr. Hasson said, the court has ruled on the spatial aspect of a display. "They take a tape measure to see how far the creche is from the giant candy cane and reindeer," he said.
A new legal argument is developing, he said, that the court must judge a city over its year of seasonal celebrations and whether it amply and fairly mixes recognition of all groups and beliefs.
"This is a temporal measure," he said, referring to a legal assessment across the time of a city's annual celebrations.

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