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After more than a half century, Santa Monica Nativity display at Palisades Park is no more

Published: Friday, Nov. 30 2012 6:35 a.m. MST

Anticipating it would only get worse in 2012, the city shut down the lottery system and voted in June to ban overnight displays at Palisades, which had been exempt from the longstanding ban on unattended displays in other city parks in order to accommodate the Nativity.

The nonprofit Nativity Scenes Committee, a coalition of churches that oversaw the display, sued in federal court, claiming the city's decision violated the committee's constitutional right to free expression.

The suit alleged the city caved to an unconstitutional "heckler's veto," a term used to describe what happens when government restricts free speech to avoid controversy. The committee backed up its claim with quotes from City Council members expressing concern about the anti-religious displays and a city staff report that stated that the "juxtaposition of religious and anti-religious displays was a distressing symbol of conflict inconsistent with the values of peace and harmony that many associate with the holiday season."

But the city steered clear of religious rancor by carefully crafting its reasoning for the ban. Officials told the court that barring the displays would conserve city resources and protect the asthetics of Palisades Park — a designated cliffside landmark that overlooks the Pacific Ocean where the famed cross-country Route 66 terminates.

The committee can erect its Nativity booths on private property or use city parks to pass out leaflets, have displays or talk to passers-by about the Christmas message during operating hours, the city said.

In a Nov. 19 ruling denying the committee's bid to temporarily block the ban, Collins agreed the city had settled on a constitutionally sound solution that doesn't take sides based on the content of displays.

Collins was to hear arguments Monday on the city's motion to dismiss, but instead ruled Thursday, saying the court had heard enough.

"The city's blanket ban on all private unattended displays … neither advances nor inhibits religions in its effect; and it does not entangle the city in religion because it applies equally to all unattended displays," Collins wrote in her 25-page decision Thursday.

'Blowing up the forum'

"The atheists won and they will always win unless we get courts to understand how the game is played and this is a game that was played very successfully and they knew it," Becker reportedly said following Collins' ruling last week.

Rassbach describes the game as "blowing up the forum," where secular groups legally erect competing displays next to a creche or other religious symbol. The dueling displays create so much consternation among the locals that elected leaders decide to ban the whole lot of them.

The strategy has worked for more than a decade in dozens of state capitols and city halls across the country. If the dispute lands in court, it is often the government and the religious group racking up the legal bills, while the secularists stand on the sidelines.

Gaylor said the result in Santa Monica is exactly what the foundation wanted, and she anticipates more of the same as secularists become more creative in pushing religion out of the public square. But she takes exception to characterizations that atheists are waging a war on Christmas.

"There's no war on Christmas, but there is a war involving the entanglement of church and state at Christmastime," she said.

Gaylor calls her group "purists" in their interpretation of the First Amendment and said they don't believe religious or anti-religious displays should be allowed on public property.

"We get along better when religion is left to the private sphere and there is not this push-pull on government property," she said.

But Becker calls such an absolute separation between church and state "a fiction" that was never intended by the framers of the Constitution. And if taken to extremes, he said, it would mean no free expression for anyone on public property.

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