A Christmas display on public property and the establishment clause of the First Amendment were the issues before the Supreme Court in Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985). The Court affirmed a decision by the Second Circuit Court of Appeals holding that the display did not violate the establishment clause. The lower court’s decision was affirmed because the Supreme Court was equally divided.

Community members petitioned the city of Scarsdale, New York, to permit them to display a creÌ�che — more commonly known as a manger scene — in a public park during the Christmas holiday season. The city, concerned about violating the establishment clause of the First Amendment, refused to give permission.

The circuit court noted first that the park was a traditional public forum, because the city had never sought to legally establish the park as anything other than “a park of the kind that is traditionally dedicated to First Amendment activities” and the city had permitted other religious and nonreligious groups to erect displays in the park. Because the community members were refused access to the park based upon the religious content of their proposed speech, the city’s act was a content-based restriction on speech.

The issue thus before the Supreme Court was whether the city’s content-based restrictions were necessary to serve the compelling state interest of avoiding a violation of the establishment clause. Applying the Lemon test, the Court held that allowing the creÌ�che display had the secular purpose of providing equal access for both religious and nonreligious speech, that allowing access to the park would not foster excessive entanglement between members of the religious community and the city, and that any effect of advancing religion was indirect or incidental. Thus the creÌ�che display would not violate the establishment clause. And because the creÌ�che display did not violate the establishment clause, the city had no compelling state interest in placing the content- based restriction on use of the public park.

Send Feedback on this article