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Dec 06 2012

Santa Monica Nativity Case Dismissed

A federal court dismissed a case brought by a group of Christians against the city of Santa Monica for not allowing any holiday displays in a public park this year after opening up a limited public forum there last year in response to an atheist group’s protest of a Christian-only display policy prior to that. You can read the full ruling here.

Santa Monica had allowed a nativity scene in the park for decades, but a couple years ago a local atheist named Damon Vix complained about it and the city, as it was legally required to do, turned it into a limited public forum and held a lottery system to determine who could put up displays. When atheists won 18 of the 21 spots, the city decided this year to just do away with all displays. Legally, that’s what they have to do — either it’s a public forum or it’s a closed forum, one or the other.

Vix had won 14 of the 21 slots, but he only put up one display — unfortunately, one that included a fake quote from Thomas Jefferson. The plaintiffs in this case demanded not a return to the lottery system but a return to the old system where only religious — that is, Christian — displays were allowed. The court ruled that the city’s new policy is, obviously, viewpoint-neutral, since all displays are prohibited. So the plaintiffs tried to argue that banning all displays amounted to a “heckler’s veto,” but the court rightly saw the absurdity in that argument:

“A ‘heckler’s veto’ is an impermissible content-based speech restriction where the speaker is silenced due to an anticipated disorderly or violent reaction of the audience.” …

First, this case does not fit within the concept of a “heckler’s veto” because it involves competing speech rights, not suppression of a message because of the audience’s reaction to it. Those who opposed Plaintiff’s displays — the claimed “hecklers” — also applied for spaces to erect Winter Displays and the City was constitutionally obligated to treat those applications equally to Plaintiff’s, even if they resulted in opposition messages…

That put the City on the “horns of a dilemma: it could not constitutionally pick and choose among competing applications, but granting them all likely would compromise the aesthetic and historic elements of [Palisades Park].” The City opted to ban all private unattended displays, which is a content-neutral, permissible solution to the problem the City faced, as discussed more fully below.

Further, a content-neutral law does not become a content-based law simply because it was motivated by those on one side of the debate. Thus, even if the City Council was motivated by a desire to resolve the dispute created by the conflicting applications for Winter Displays, it did so without singling out Plaintiff’s speech for regulation, while allowing others to erect displays with other messages.

That should be the end of the legal controversy, though not the social one. They’ve already figured out a way around the ruling, which is to have a live display instead of an unattended one. But they can only do that for a short time:

A national coalition of Christian groups has joined the fray over the ending of the nearly 60-year tradition of Nativity scenes at a park in Santa Monica, Calif., by announcing it will hold a “Live Nativity Display” on Saturday, Dec. 8. The announcement comes on the same day a U.S. District Judge officially dismissed a lawsuit filed by a local church coalition seeking to challenge the city’s ban on Nativity and other seasonal displays in public areas.

The Live Nativity Display campaign is being led by the Christian Defense Coalition and Faith and Action, which are both based in Washington, D.C., along with local Southern California Christians and pastors.

“Sadly, we are seeing an erosion of expressions of faith in the public square,” said the Rev. Patrick J. Mahoney, director of the Christian Defense Coalition. “This is especially true during the Christmas season. We must be constantly reminded that the Constitution promises freedom ‘of’ religion not freedom ‘from’ religion.

Such a tired old cliche. The constitution requires both, of course; you do not have freedom of religion unless you have freedom from the imposition of other religions.

12 comments

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  1. 1
    dingojack

    Damon Vix?
    Is he the anti-Vox Dei?
    Or a minor villian (perhaps a Ferengi) in a Star Trek episode?
    ;) Dingo

  2. 2
    joachim

    Actually, this is a limitation on freedom of expression.

  3. 3
    dingojack

    No, no it isn’t. They’re free to set up nativity scenes on their own properties if they wish. The state is not obliged to provide a soap-box for every person who wants to make a speech.
    Dingo

  4. 4
    composer99

    Mahoney states:

    Sadly, we are seeing an erosion of expressions of faith in the public square. This is especially true during the Christmas season. We must be constantly reminded that the Constitution promises freedom ‘of’ religion not freedom ‘from’ religion.

    I bet his tune would change in a heartbeat if some pagan, Hindu, or Muslim religious displays were allowed to intrude into the public square at the expense of Christians.

  5. 5
    jnorris

    And of course, none of the Christian churches in town will allow a nativity display on their property.

  6. 6
    Gvlgeologist, FCD

    I bet his tune would change in a heartbeat if some pagan, Hindu, or Muslim religious displays were allowed to intrude into the public square at the expense of Christians.

    Actually, that’s pretty much what they’re doing. Many Xtians constantly claim that Atheism is a religion. Well, according to that logic, they (the Atheists) are simply professing their religion in the public square, and the Xtians are complaining about it.

  7. 7
    Scr... Archivist

    Ed,

    One thing confuses me. Part of the quote from the ruling reads, “The City opted to ban all private unattended displays….” Should that end with “…in Palisades Park.”?

    I ask because I would expect such a rule to not apply to displays on church property.

    If one opens up Google Maps and search “map of churches in santa monica”, you will see that there are a couple dozen churches in that city. StreetView shows that many of them have a lot of road-side real estate, with plenty of room for their own displays. (This would probably work in every town in the U.S.)

    I’m confident that we’ll start eventually seeing Nativity displays migrate from government to church property, putting the lie to the claim that Christians’ free expression is being suppressed.

    They’re losing the fight to retain government sponsorship, and it’s a severe psychic blow to no longer get such deference. I wonder how long it will take them, or their descendents, to be happy with the new arrangement.

  8. 8
    ajb47

    dingojack @3:

    Funny how an Australian gets our Constitution better than some of us who live here. (I don’t know if the commenter who dingojack was responding to is from the States, but the people in the lawsuit certainly are, and his comment applies to them as well.) It’s a little sad.

    AJ

  9. 9
    rory

    I don’t really see a live nativity scene as a way around the ruling. As long as they’re following whatever the appropriate rules for public gatherings in the park are, let them have it. Presumably any other group that wishes to do something comparable would be able to do so; or example, the Freethought Society in West Chester, PA formed a ‘human tree of knowledge’ in front of the courthouse when they were forbidden from putting up a display.

  10. 10
    eric

    They’ve already figured out a way around the ruling, which is to have a live display instead of an unattended one. But they can only do that for a short time…

    IIRC a city in Virginia did something similar (but not exactly the same), with amusing consequences. They passed an ordinance saying all displays must be attended by the sponsors. They probably figured that a few or lone atheist couldn’t succesfully do that while a big church would have no problem doing it. But the result was the exact opposite: no church put up a display because they couldn’t find the people to attend it, while there was a lone atheist who basically camped out by his display.

    Again IIRC, that was in 2011, and this year they – surprise surprise – changed the law again.

  11. 11
    baal

    “Sadly, we are seeing an erosion of expressions of faith in the public square government property,”

    If the majority of publicly accessible land, sidewalks, or buildings were owned by the government, this would be a more interesting statement. The fact that there are only a handful of government buildings (and a finite number of public parks) in most towns and cites shows that the xians are looking for governmental endorsement of their religion and exclusion of other religions (or non-region). Having to put up the display on the next property over is hardly a burden.

    Further, even if we had an extremely restrictive rule, “Nativity and sectarian displays must only be placed on the property of churches and other houses of worship” I still see just as many of them that I do now. You can’t drive through any town or neighborhood and not see a church or equivalent every few blocks.
    I know of 4 that I see on my way to work and my son (11!) pulled out a google maps and showed me I was wrong. I had missed noticing another 3 that were less landscaped.

  12. 12
    skinnercitycyclist

    We must be constantly reminded that the Constitution promises freedom ‘of’ religion not freedom ‘from’ religion.

    This is always the stupidest argument made about this type of thing. What does it really mean? Does it mean we have no right to NOT have a religion? We must choose among the proffered varieties or we have no rights?

    Also, how is it that “freedom OF religion” (as opposed to freedom FROM religion) is in the constitution, but “separation of church and state” is not?

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