Nativity Scenes Coalition Files Appeal Challenging Santa Monica Ban Decision

Thursday, 3 Jan 2013, 9:54:00 AM

Parimal M. Rohit

One of the nativity scenes at Palisades Park on display last Christmas. City Council’s unanimous voted June 12 put an end to the nearly 60-year tradition.
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One of the nativity scenes at Palisades Park on display last Christmas. City Council’s unanimous voted June 12 put an end to the nearly 60-year tradition.

Six weeks after a federal judge denied a preliminary injunction request by a coalition of churches to prevent Santa Monica from enforcing its ban against Nativity scenes along a stretch of Ocean Avenue, the attorney representing that coalition filed an appeal challenging the decision.

The attorneys for the Santa Monica Nativity Scenes Committee filed the appeal Jan. 2 in the U.S. District Court.

U.S. District Judge Audrey B. Collins ruled Nov. 19 against the Santa Monica Nativity Scenes Committee, which had two weeks earlier filed a request for a preliminary injunction to prevent Santa Monica from enforcing Nativity Scenes ban at Palisades Park.

Her ruling was reportedly based upon the assertion that the administrative burden of weighing in on the case’s complexities outweighed the benefit to the Santa Monica Nativity Scenes Committee had a decision been granted in its favor.

Since the ruling, various group members of the coalition moved forward with a plan to display the Nativity Scenes on private property along Ocean Park Boulevard.

William J. Becker, Jr., represented the coalition in its federal claim against City Hall.

“A city can certainly have a policy that disallows private, unattended displays in a public park, but it cannot ban them on the basis of an unconstitutional rationale,” Becker stated. “In this case, the city feared that atheist groups would repeat their aggressive anti-Christian campaign every Christmas, adding strain on city staff processing applications to put up seasonal displays in the park. Rather than fight the unconstitutional bullying of the atheists, the city surrendered to their hostile tactics. The courts call that a ‘heckler’s veto,’ and have said it is an unconstitutional reason for suppressing religious expression.”

Becker further added City Hall’s adopted policy against Nativity scenes could set a bad precedent for other First Amendment rights.

“Imagine if the city decided to ban all public expression out of fear it would cause additional strain on its police services because a few groups wanted to stir trouble,” Becker said. “The First Amendment exists specifically to safeguard such threats to protect speech activities, and the city’s job is to protect the rights of those whose protected expression is targeted by unruly forces.”

Collins denied the preliminary injunction, stating the city ordinance was constitutional and that City Hall was legally entitled to prevent erected structures in public spaces so long as the ban was equally applied to everyone irrespective of beliefs and it allowed for religious speech to take place in other public forums.

She further added City Hall did not enact its policy based upon any specific content.

Becker and Peffer stated in the motion their client has displayed Nativity Scenes in Santa Monica for 59 years, the last eight of which were pursuant to Santa Monica’s “content-neutral Winter Display Policy.”

The attorneys stated City Hall effectively squelched constitutionally protected religious speech and its actions would “unlawful actions seek to erase history under the disingenuous pretense that this year administrative resources will be compromised due to ‘increased impacts on the park and on staff resources.’”

“For almost 60 years, a tableaux of life-size Christmas Nativity scene displays charmed visitors to Palisades Park over a three-week period in December,” the attorneys stated in the initial federal complaint. “Its presence and prominence in Santa Monica civic life inspired the nickname ‘The City of the Christmas Story.’”

In 1953, Actress Joan Wilcoxon conjured up the idea to have Nativity scenes displayed annually in Palisades Park.

Until last year, displays depicting the birth of Jesus Christ were allowed at Palisades Park as part of an exception to the general citywide rule prohibiting the erection of structures in public parks.

For decades, City Hall allowed religious institutions to use Palisades Park to erect unattended displays during the Christmas season.

However, as Christmas 2011 approached, the number of groups requesting use of Palisades Park under the City Hall exception far exceeded the space available. Local officials resorted to a lottery system to determine who would be entitled to set up a display.

The lottery was employed, according to City staff, “in order to allocate display opportunities in an unbiased manner.”

Due to the lottery system, 18 of the 21 spaces in Palisades Park were allocated to atheist groups. Only two slots were allocated to Christmas displays; a Hanukkah display was awarded the other slot.

Accordingly, the issue became tense with differing groups hoping to put up a winter display of some sort during the Christmas season. City Hall then began to contemplate whether to eliminate its exception altogether and extend the strict prohibition against private displays in public spaces within Santa Monica at Palisades Park.

According to reports, the City Attorney’s office stated city staff annually spends about 245 hours reviewing applications for spaces.

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