Court Deadlocks on Nativity Scene Case

An evenly divided Supreme Court deadlocked over a key church-and-state case Wednesday, thus affirming a ruling that requires a city in New York to allow a private group to place a Nativity scene in a public park during the Christmas season.

The 4-4 vote was announced in a brief order saying that Justice Lewis F. Powell Jr., who missed oral argument in the case while recuperating from prostate surgery, had not participated in the decision. As is customary in such cases, no individual votes of the justices were recorded.

Sets No Precedent

The court’s tie vote affirms a ruling by a federal appeals court in New York. But it does not establish a binding national precedent. The issue could reemerge in another case that could be decided by the full nine-member court.

A definitive ruling in the case had been widely awaited. Last year, in a 5-4 decision, the court permitted the city of Pawtucket, R.I., to place a depiction of the birth of Christ in a municipally sponsored Christmas display. The court held that the action did not violate the Constitution’s prohibition against government establishment of religion. Powell voted with the majority.

The New York case could have determined in what circumstances--if any--a city could be required to permit privately sponsored religious displays on public property.

Last Christmas season, numerous controversies arose across the nation over renewed attempts to erect such displays. Federal officials, citing the court’s ruling in the Rhode Island case, permitted a privately sponsored display on public grounds near the White House, despite protests from some groups.

Burt Neuborne, a lawyer for the American Civil Liberties Union in New York, said that, despite its limited effect, the court’s action Wednesday “no doubt” will encourage more attempts to erect religious displays on public property.

‘Back to Square One’

“This essentially takes everyone back to square one,” Neuborne said. “It almost guarantees an inundation of litigation next Christmas.”

In the New York case, a privately sponsored Nativity scene had been permitted in a small, centrally located city park in the village of Scarsdale for 24 years.

But protests in the religiously diverse community grew and, in 1981, village officials said the issue was leading to bitter divisiveness and barred the display for the first time. Civic, charitable and other community groups--such as the Red Cross--remained free to erect their signs and symbols in the park.

Supporters of the Nativity scene, including representatives of Catholic and Protestant churches, went to court, contending that their right of free speech had been violated. They eventually won a ruling from the U.S. 2nd Circuit Court of Appeals in New York saying that the village had barred the display improperly.