In this Dec. 13, 2011 file photo, a woman walks past a two of the traditional displays showing the Nativity scene along Ocean Avenue at Palisades Park in Santa Monica, Calif.  Ringo H.W. Chiu—AP

Overview:

 

The below commentary is from Circuit Judge Bybee's opinion from Santa Monica Nativity Scenes Committee v. City of Santa Monica No. 13-55011 D.C. No. 2:12-cv-08657-ABC-E (9th Circuit Court of Appeals) Filed April 30, 2015

 

Beginning in 1953, local residents erected a series of large dioramas in the Park depicting various scenes from the biblical story of Christmas each December  The display consisted of 14 booths, each 18 feet long and filled with life-sized mannequins and decorations. Putting up and taking down this elaborate display was a significant undertaking, and in 1983, the nonprofit Santa Monica Nativity Scenes Committee was organized to manage the yearly construction of the dioramas. In 1994, the City prohibited the construction of unattended displays—i.e., large, multi-day installations—in its parks, but it nonetheless continued to allow the nativity scenes. Subsequently, in 2003, the City Council enacted an exception to the general prohibition on unattended displays. This “Winter Display” exception authorized unattended displays during the month of December, and only in Palisades Park. Under the “Winter Display” rule, all members of the
community, not just the Committee, were permitted to put up displays, and display space was to be allocated on a first- come, first-served basis.

 

The Winter Display system functioned without incident in its first few years of existence, during which time the only applicant who requested substantial display space was the Committee.

 

In 2011, however, applications for Winter Display space surged. That year, a number of atheists who opposed the placement of religious displays in Palisades Park applied for Winter Display space in what the Committee alleges was a coordinated attempt to keep the space away from the Committee and other religious groups. The City used a lottery system it had created to allocate the available space, and the atheists received the majority of the display spots. 

 

Rather than continue the lottery system and expend the effort necessary to process all of these expected applications, the City elected to repeal the Winter Display exception and keep the Park free of all unattended displays. The Committee responded by suing the City, alleging that the repeal ordinance violated the Committee’s right to free speech because it was an unconstitutional “heckler’s veto.” The
Committee also alleged that the repeal violated the Establishment Clause by conveying the message that the City disapproved of Christianity.

Case Chronology

 

2009, 2010: An atheist named Damon Vix applied for and was granted a booth in Palisades Park alongside the story of Jesus Christ's birth, from Mary's visit from the Angel Gabriel to the traditional crèche. Vix hung a simple sign that quoted Thomas Jefferson: "Religions are all alike -- founded on fables and mythologies." The other side read "Happy Solstice." He repeated the display in 2010.  (Source article: "Churches sue California city to bring back nativity scene", By Gillian Flaccus; Nov. 19, 2012, 9:23 AM EST, nbcnews.com.)

 

2011: Vix recruited 10 others to inundate the city with applications for tongue-in-cheek displays such as a homage to the "Pastafarian religion," which would include an artistic representation of the great Flying Spaghetti Monster. The secular coalition won 18 of 21 spaces. The two others went to the traditional Christmas displays and one to a Hanukkah display.  (ibid., "Churches sue California city to bring back nativity scene")

 

2012: The Committee responded by suing the City, alleging that the repeal ordinance violated the Committee’s right to free speech
because it was an unconstitutional “heckler’s veto.” The Committee also alleged that the repeal violated the Establishment Clause by conveying the message that the City disapproved of Christianity.  [Circuit Judge Bybee's opinion from Santa Monica Nativity Scenes Committee v. City of Santa Monica No. 13-55011 D.C. No. 2:12-cv-08657-ABC-E (9th Circuit Court of Appeals) Filed April 30, 2015]

 

2012:  The District Court dismissed the complaint brought by the Santa Monica Nativity Scenes Committee seeking to continue the decade-old practice of exhibiting nativity scenes during the month of December in Palisades Park, Santa Monica, California. The Committee challenged the constitutionality of the City of Santa Monica’s Ordinance No. 2401, which repealed an exception to the City’s general ban on “unattended displays” in its parks. The repealed exception had permitted certain unattended “Winter Displays” in the City’s Palisades Park every December, using a lottery system to allocate the available space. [Ibid., Circuit Judge Bybee's opinion]

 

The District Court Justice wrote in the opinion “To demonstrate a violation, Plaintiff must show that it was intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment,” (Source: "In Santa Monica, It’s Not Looking a Lot Like Christmas Thanks to Nativity Scene Ban" By Madison Gray Nov. 26, 2012. Time.com)

 

2015:  The 9th Circuit Court affirmed the district court’s order The panel held that:

(1) the heckler’s veto doctrine had no application in this case, which involved the City’s generally-applicable repeal of a special exception to its policy of excluding unattended displays from its parks;

(2) the repeal was a content-neutral time, place, and manner regulation;

(3) the Committee’s Establishment Clause claim was without foundation.

(4) the City had several secular rationales for enacting Ordinance 2401—e.g., improving the aesthetics of Palisades Park and alleviating administrative burdens on the City.

(5) it was not plausible that, considering Ordinance 2401 in context, a “reasonable observer” would conclude that its primary effect was to communicate a message of disfavor toward Christianity. [Op.cit., Circuit Judge Bybee's opinion]

 

Sources and Links:

Churches sue California city to bring back nativity scene

By Gillian Flaccus; Nov. 19, 2012, 9:23 AM EST

nbcnews.com. https://www.nbcnews.com/news/us-news/churches-sue-california-city-bring-back-nativity-scene-flna1C7150436

 

Santa Monica Nativity Scenes Committee v. City of Santa Monica (Circuit Judge Bybee's opinion)

No. 13-55011 D.C. No. 2:12-cv-08657-ABC-E (9th Circuit Court of Appeals) Filed April 30, 2015

https://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/30/13-55011.pdf

 

In Santa Monica, It’s Not Looking a Lot Like Christmas Thanks to Nativity Scene Ban

By Madison Gray Nov. 26, 2012

Time.com  https://newsfeed.time.com/2012/11/26/just-in-time-for-christmas-judge-upholds-nativity-scene-ban/

 

Santa Monica can block popular Nativity scene in park, judge rules

By NBC News staff and wire services; Nov. 19, 2012, 5:41 PM EST

nbcnews.com.  https://www.nbcnews.com/news/us-news/santa-monica-can-block-popular-nativity-scene-park-judge-rules-flna1C7159025

 

Santa Monica's Ban on Nativity Display Upheld

By Josh Sanburn ; April 30, 2015 4:24 PM EDT

Time.com  https://time.com/3842493/santa-monica-nativity-display-ruling/