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

In this Dec. 13, 2011 file photo, a man walks past two of the traditional Nativity scenes along Ocean Avenue at Palisades Park in Santa Monica, Calif.

Ringo H.W. Chiu, Associated Press

SANTA MONICA, Calif. — After nearly 60 years in picturesque Palisades Park, the religious community's traditional Christmas Nativity tableau has a new space in the industrial park of this coastal city west of Los Angeles.

The new locale was made certain Thursday when a federal judge dismissed a lawsuit attempting to preserve the Nativity display in its historical public park setting.

"The Grinch hasn't stolen Christmas. He has stolen our liberty. That's something that should concern everyone," said William J. Becker Jr., lead counsel for the Santa Monica Nativity Scenes Committee, which sued the city in October alleging a violation of free speech rights.

He said his client will appeal Judge Audrey B. Collins' ruling, which was expected after Collins denied the committee's bid last week to block the city's ban on overnight displays in all city parks.

The Santa Monica Nativity is the latest to get moved or mothballed by what is proving to be a successful tactic of secularists: forcing city halls to either ban overnight displays on public property or let all groups erect competing booths denouncing each other's beliefs during the holidays.

But religious liberty advocates contend the goal of free expression doesn't have to be an all-or-nothing proposition. "Cities can set up all kinds of forums for speech on things that are important to the citizenry," said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty. "It’s not like they have to have forums that debate everything. You can have forums just for celebration. That's fine under the Constitution."

Heckler's veto

Santa Monica's 14-booth tableau depicting the story of Jesus' birth was displayed during the holidays with little controversy until 2010, when Damon Vix, a movie set builder, atheist and outspoken critic of the display, decided to erect his own competing booth.

He placed a call to the Freedom From Religion Foundation and asked if it had any signs he could use, recalled Annie Laurie Gaylor, co-president of the Wisconsin-based foundation. They shipped Vix a sign that credited Thomas Jefferson with the saying: “Religions are all alike — founded on fables and mythologies.” The other side of the sign read “Happy Solstice.”

Gaylor said calls from people like Vix are becoming more common around this time of year. And so are threats from people who want the foundation to butt out of their town's affairs.

"The (calls) started to come in early this year because Thanksgiving was earlier," she said. "We have doubled our legal staff this year to deal with complaints coming in already and to deal with those left over from last year."

Vix, who did not respond to a request for an interview, had applied to the city for 14 spaces, but used only one for his lone display. However, the city sensed a storm was brewing, according to court documents. Anticipating a deluge of permit applications for the 2011 annual winter displays, Santa Monica created a lottery system for 21 spaces in the park.

The city's instincts proved accurate. Court documents state Vix and 10 others he recruited swamped the city with applications and won 18 of the spots, while two others went to the traditional Christmas displays and one to a Hanukkah display. The added booths doubled the size of the annual event, and emotions escalated.

According to the Associated Press, vandals defaced the tongue-in-cheek secular displays that payed homage to the “Pastafarian" religion's great Flying Spaghetti Monster or otherwise denounced Christian beliefs.

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.

"When you have a right to free speech and the government tells you that you can only do your speaking in private, that violates the Constitution. That's not a rationale for violating the First Amendment," Becker said of Santa Monica restricting the Nativity display to church lawns.

Constitutional scholars agree that legal precedents over the past half-century have found religion has a right to free expression on public property.

"Although government may not promote a religious message, the court has ruled that private religious expression in a public forum doesn’t violate the Establishment clause as long as other expression is allowed on equal terms," wrote Charles Haynes, senior scholar at the Freedom Forum First Amendment Center, in the Washington Post.

Rassbach said that local governments can be more creative in defining those equal terms than what Santa Monica decided to do. He said that governmental bodies from Congress to town councils have marked certain days and times for celebrations of all kinds, and Christmas can fall under those guidelines.

"There is no requirement under the establishment or free speech clauses (of the First Amendment) to give opponents of those celebrations the same voice at the same time as the celebrators themselves," he said.

In other words, each group can have its own day and time in the park, rather than all at once.

One issue Gaylor and religious liberty advocates do agree on is that the law in the area of Christmas displays is murky. Rather than clear guidelines, the courts have provided nuanced rulings. The most notable has been mockingly referred to as the "reindeer rule," in which the 1984 Supreme Court determined that mixing enough secular decorations in with religious can neutralize the message when government gets involved.

Becker acknowledged before Thursday's anticipated dismissal that appealing to the 9th Circuit Court of Appeals, which he said is not always friendly to religion, risks coming away with another precedent that could hurt religious expression.

"We’ve got a mountain to climb here, and I have a good client who is interested in protecting and preserving First Amendment rights of everyone," Becker said. "If the judiciary don’t support us, at the very least we can say we did our best to try to overcome a wall atheists have erected between us."

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