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A CRECHE OUTSIDE THE U.S. CAPITOL? IT’S THERE, AND ACLU CAN DO NOTHING

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My eyes didn't deceive me. That really was a life-size nativity scene on the steps of the U.S. Capitol.

How could that be? The American Civil Liberties Union is constantly suing to remove them from government property in its vigilance to keep church and government separated.Fear of an ACLU suit this year even led nearby Vienna, Va., to ban religious hymns from a community "holiday" celebration (it dared not call it a Christmas event). The funniest protest sign there was, "The ACLU doesn't like Christmas because it doesn't have three wise men or a virgin in its organization."

So with all that, how did that nativity scene end up on the Capitol steps - and just across the street from the Supreme Court, where the ACLU has won so many victories?

"I'm protesting, and these figures are part of my protest," said Rita Warren, a Fairfax, Va., grandmother who immigrated from Italy as a war bride in 1947 and who has found a loophole in U.S. laws to allow nativity scenes at government buildings.

"I have a permit to peacefully demonstrate here, and I'm demonstrating my faith," she said. "As long as I stay here with the figures, they are part of my protest and they cannot be removed."

Warren discovered that although protecting religious speech may not be currently in vogue, protecting the right to protest is. So if your protest just happens to include religious speech or a nativity scene on government property, it's protected, too.

The catch is that she cannot leave the nativity scene unattended. It has to go when she does.

So for 12 years now, Warren has come to the Capitol from 9 a.m. to 5 p.m. every day beginning two weeks before Christmas. On Christmas Eve, she stays until midnight. "Most people like it," she said as a constant stream of people lined up for pictures in front of it in cold weather - many asking if it was legal.

She said the ACLU has asked her through the years to add signs or otherwise make clear that the scene is hers and is not government-sponsored or approved in any way. "I said no," she said with a sparkle in her eye. She did add a "Happy Hanukkah" sign to "show I support a diversity of religions."

Why does she do this? "When I was a girl in Italy, we used to have pictures of Jesus on the wall. Then when Mussolini came, they took them down and put his picture up instead - and we had to salute him every morning.

"When the Nazis came, they put up Hitler's picture. When we started saluting Hitler and Mussolini and forgot about Jesus, that's when our trouble began. When you take God out of a country, it will fall. History has shown that," she said.

Warren adds, "I have to come back every year. If you don't use your First Amendment rights, you will lose them."

She said one of the people who cheers her on every year is Sen. Orrin Hatch, R-Utah. "He is wonderful. When some people were talking about trying to move me, he came up and said, `Rita, we won't let them pass any law that would move you out of here.' How could they anyway? Such a law would go against the Constitution. They would have to change the Constitution."

Another supporter, she says, is native Utahn Mark Cannon, who was the chief clerk to former Supreme Court Chief Justice Warren Burger when they first met. "He told me what I am doing is absolutely legal. He has been very kind," Warren said.

Warren's "protest" has been spreading. In recent years, she has added an Easter display/protest on Capitol steps, and a Christ figures display/protest in some summer months. And some of her friends in Connecticut have started similar display/protests there. "People everywhere could do it," she said.

She even took her Easter display of Roman soldiers and the crucifixion to Red Square in Moscow last year. Ironically, she didn't have to "protest" there for government sanction. After all, freedom of religion is emerging in Russia now.