Sunday, December 13, 1998

By Ellen G. Lahr
Berkshire Eagle Staff

PITTSFIELD -- Jon A. Papa will return to the Parks Commission tomorrow
night with a fresh request to place his Nativity scene in Park Square --
and this time he has some legal muscle behind him.

Papa, whose initial request for a two-day display was rejected in a
split vote at a Nov. 30 board meeting, has sought legal help from the
American Center for Law and Justice, an organization funded by Pat
Robertson, a leader of the country's conservative Christian movement.

The coalition has sent a demand letter to the city, citing federal case
law that supports a private individual's right to place a Nativity scene
in a public park. The letter promises a lawsuit in federal court if Papa
is denied the right to display the Nativity scene.

Parks Commission Chairman Clifford J. Nilan, who supported Papa's
original request, said the letter will probably have little impact on
the board's decision.

"I don't think will play a role in anyone's vote," said Nilan. "It
didn't make a difference before the first vote, and it won't make a
difference at the second vote."

Nilan reiterated his own position on the matter.

"I think he has the right to do it," he said. "What upsets me is that
this has become a huge hornet's nest."

Papa said his desire to express his personal spiritual faith in public
is allowed by the Constitution. Concerns about whether the display will
"offend" someone are secondary, he said.

"Enough is enough," said Papa last week. "Nowadays you can't say 'God'
in a public place or in a school without offending someone, and
everyone's walking on pins and needles. I have the right to do this."

Indeed, the Parks Commission's discussion at the Nov. 30 board meeting
was peppered with remarks suggesting that a religious scene in the park
might be offensive to some people.

For many years the Knights of Columbus erected a creche at Park Square
during the Christmas season. But about 10 years ago, the display was
moved just across the street to the front lawn of St. Stephen's Church.

Two area religious leaders also wrote letters to the Parks Commission in
which they said that church property -- not the park -- is the best
location for such displays.

The Rev. Robert Kyte, pastor of the First Congregational Church in
Dalton and president of the Pittsfield Area Council of Churches, wrote
in his letter, "These days, Christmas symbols are placed everywhere,
with little attachment to the real and original meaning of the holiday.
A creche in the front of a church visibly ties the story of the Nativity
to the Christian faith and church."

The Rev. J. Michael Povey of St. Stephen's Episcopal Church wrote that
having a creche on his church lawn as well as on Park Square might give
a wrong impression to passers-by.

"We would be embarrassed by the presence of what could be constructed as
rival shrines," wrote Povey.

Papa's original request was for a two-day display of the Nativity, which
was rejected by the Parks Commission. His revised request, he said, is
for just a 24-hour display starting Christmas Eve.

The letter from the American Center for Law and Justice recaps a series
of court decisions that assure a private individual's or organization's
right to place a Nativity scene in a public forum. However, government
sponsorship of religious displays, particularly when the religious
display is limited to a particular religion, are considered
unconstitutional, the decisions say.

The conflict in Pittsfield mirrors others that have occurred around the
country many times. Just two weeks ago, on Nov. 30, a federal court
ruled that the Somerset Fire Department's annual Nativity scene was
unconstitutional because it suggested government sponsorship of a
particular religious viewpoint.

But this week Somerset town officials rebelled on the lawn of their Town
Hall. As reported by the Associated Press , they placed a Nativity scene
alongside an 18-foot-tall Santa and his reindeer; a large, illuminated
'Season's Greetings' sign; a plastic snowman; and a menorah and 'Happy
Hanukkah' sign.

A balanced mix of religious and secular symbols has been ruled
constitutional by the court, so the town apparently pulled out all the
decorations.

Ann-Louise Lohr, an American Center for Law and Justice lawyer
representing Papa, said the Pittsfield scenario differs from the
town-sponsored Christmas scene in Somerset.

She said the Supreme Court has ruled that while government-sponsored
religious displays are unconstitutional, a private display is allowed in
a public site that is typically used by private groups or individuals to
express their views.

Park Square fits that bill: Politicians announce their campaigns there,
labor unions walk picket lines there, women's groups and animal rights
groups have held events there.

Kate Alexander, Pittsfield's city solicitor, advised the Parks
Commission before the Nov. 30 vote that Papa's request should be granted
because Papa is a private individual. However, she also said the board
has the right to set the terms, times and any conditions of the Nativity
scene's placement.

Nilan said he doesn't believe the constitutional guarantee of "free
speech" allows Papa to put up a structure in the park without the
board's supervision.

But if Papa wants to stand in Park Square and speak about Christmas, he
is free to do so, Nilan said.

In a nine-page Dec. 7 letter to Alexander, Vincent P. McCarthy, senior
regional counsel for the American Center for Law and Justice, requests
that the city "cease and desist" from violating Papa's First Amendment
right to freedom of speech.

"It is interesting to note that all of the federal judicial circuits
ruling on this issue within the last few years have upheld the rights of
private citizens to erect religious holiday displays in a public forum,"
he wrote.

McCarthy's letter outlines several cases, one of which stated: "By
permitting religious speech in a public forum -- whether in the heart of
a core government building, in the Georgia Governpermitting religious
speech in a public forum -- whether in the heart of a core government
building, in the Georgia Governor's mansion, or in the ou

In another case, in which a private group of citizens sought to display
a biblical scene in a town park gazebo, a federal circuit court ruled
that the private group "has a right to express its views publicly in
areas traditionally held open for all manner of speech. Tolerance of
religious speech in an open forum does not confer any state approval on
religious sects or practices."

Papa's chances of prevailing tomorrow night are likely to be good: The
Nov. 30 board meeting, at which Papa's request failed by a 2-2 tie,
included a note from the absent board member, Ben J. Kaplan. Kaplan
indicated that while he would not support a two-day display, he would be
inclined to approve a one-day display.

Nilan said he expects the full board to be present tomorrow night.

Lohr predicted the matter will be resolved tomorrow in Papa's favor.

"Ninety percent of these cases are resolved out of court when one side
reads the law and finds out what the courts say is permissible," she
said