WASHINGTON -- It won't happen in time for Christmas this year, but there seems to be a good chance that the Supreme Court soon will clarify the constitutionality of putting up religious holiday symbols outside government buildings.
For a decade, the court has sent uncertain messages about religious displays -- Christian or Jewish, usually -- that are placed on the lawns, steps or walls of official structures or public parks.
The last time the court issued a full-scale decision on the subject, more than five years ago, the outcome was mixed. Two combinations of votes among the justices produced these rulings:
* A Christian Nativity scene, including a message praising God for the birth of Jesus, was unconstitutional when put up at Christmastime in a prominent place on a government building, because no nonreligious symbols were included in the display. (The court voted 5-4 on that.)
* A Jewish menorah, a symbol of the Hanukkah holiday, was not unconstitutional in a similarly prominent place on a government structure, because the menorah was next to a Christmas tree, which could be considered a nonreligious symbol. (The vote was 6-3.)
Those outcomes suggested that the court probably would insist that the government not appear to endorse a religious faith and that the display itself be aimed at promoting more a holiday than a religion.
The court, however, left open the question of what the government could do constitutionally when it merely tolerated a religious display put up by someone else in a space that usually serves as a "public forum" -- that is, a space ordinarily open to all comers, for speeches, gatherings and public events.
That question may force the court to choose between the right of free speech for those who would speak about their faith or put up religious displays and the constitutional rule that government and religion must remain separate.
Lower courts, which confront every year at this time a new round of challenges to religious holiday displays, have been issuing widely differing rulings on how to interpret the court's 1989 ruling.
Now, one of those lower-court rulings is being tested in an appeal that awaits the justices' attention, probably in January. It is a significant test case from Columbus, Ohio, where a federal appeals court ruled that the state must allow a private group to erect a Christian cross during the Christmas season on the lawn of the state Capitol -- a display the state government strenuously opposed.
"Speakers with a religious message," the appeals court said, "are entitled to no less access to public forums than that afforded speakers whose message is . . . nonreligious. . . . There is a crucial difference between government speech endorsing religion, which the [Constitution] forbids, and private speech about religion, which the [Constitution] protects."
The Supreme Court voted to hear the question at issue in the Columbus case in 1985, when the justices agreed to review the constitutionality of placing a Christian Nativity scene in a city park in Scarsdale, N.Y. The display was sponsored by local church groups. The court ultimately split 4-4 on that case.
But the Columbus case appears to have a strong chance of being reviewed. (It takes the votes of only four of the nine justices to agree to hear a case.) The reasons are that the court clearly wanted to address the question in 1985, mentioned in its 1989 decision that the question remained open and one justice said last December that the issue should be brought back to the court.
The public space involved in the new case is the lawn of the Ohio statehouse in downtown Columbus. For years, it has been used by many groups for civic gatherings. For several years, at Christmastime, state officials allowed a Christmas tree and, during the Hanukkah festival, they permitted a Jewish menorah.
In 1993, the state agency that controls the space decided that it would no longer allow any displays during December. Later, it changed its mind and again permitted a Christmas tree and a menorah.
Reacting to the Jewish symbol, the Ohio Realm of the Ku Klux Klan sought permission to put up a Christian cross. Next to the 6-foot cross was a sign saying that the government was not involved in the effort. The state agency barred that cross, but the Ohio Klan leaders went to court, ultimately winning.