Judge to Rule on Creche in Downey : ACLU Again Objects to Nativity Scene on City Property

The Downey Christmas Assn. busied itself over the weekend setting up a Nativity scene next to the city’s historic arch, but a judge is expected to decide Friday whether to order it dismantled.

Downey and the American Civil Liberties Union are scheduled to tangle in Los Angeles Superior Court for the second consecutive year over placement of the creche on city property at the Civic Center. The display is a recently resumed city tradition the ACLU says violates the state Constitution.

Despite the hearing, the Christmas association, a loosely organized group of volunteers, set up the creche in a light rain Saturday morning in a grassy area just north of the police station.

The Nativity scene includes three-quarter-scale figures of the baby Jesus in a straw-lined manger, Joseph and Mary, three wise men, two angels, camels, sheep and goats.

‘A Downey Tradition’

“We want to carry on a Downey tradition,” Marilyn Evans, chairwoman of the Downey Christmas Assn., said earlier this week. “I hope people will drive by and enjoy the scene.”

But the ACLU contends that the placement of the creche anywhere near city hall violates the California Constitution, which prohibits governments from showing discrimination or preference toward a religion.

“The people who see it where it is now will come away with the association of city government and that’s what’s intended,” ACLU attorney Carol Sobel said. “It clearly implicates (that) the government is expressing a preference for one belief, a Christian belief and a particular Christian belief.”

Downey city employees had set up a Nativity scene in front of city hall each year since the early 1960s, said Jim Jarrett, director of community services. The practice was stopped about four years ago because the figures, which had been donated to the city by a mortuary, were dilapidated.

The City Council voted in October, 1985, to spend $3,250 on a new Nativity scene for display near Downey’s new city hall. The legal jockeying began there.

Lawsuit Warning

The ACLU notified Downey in a letter that it would file a lawsuit against the city to prevent the purchase. The City Council rescinded the Nativity scene purchase that December, deciding to allow private citizens to buy the scene for display on city property.

The Downey Christmas Assn. was formed and raised the money needed to buy the Nativity scene, which was set up by volunteers and city employees in front of city hall on Dec. 11, 1985, Jarrett said.

The ACLU sued on behalf of three Downey residents, and Superior Court Judge Irving A. Shimer issued a temporary restraining order that forced the city to remove the Nativity scene two days after it was set up. The following day, the Christmas association moved the creche to the lawn by the city arch, a historic city monument.

A hearing was scheduled last January to decide whether the new setting violated the state Constitution, but because the holiday season had passed, the ACLU decided to wait to press resolution of the case, Sobel said. On Nov. 14, the ACLU filed a motion for summary judgment, which will be heard Friday by Superior Court Judge Richard A. Lavine. The lawsuit would force the Nativity scene to be moved out of the Civic Center area, Sobel said.

Area a Public Park

The area surrounding the city arch, which was the entrance to Downey Grammar School from 1916 to 1957 and later the entrance to Downey’s old city hall, was declared a public park last December.

This year, city employees did not help erect the Nativity scene, City Atty. Carl Newton said.

“It’s our position that if we denied the permit we would expose the city to a possible order of court for denying someone’s freedom of expression under the U. S. Constitution,” Newton said. “We’re simply allowing this expression on the part of certain persons who want to put on a display to commemorate the historical basis for a holiday.”

Both sides will be backed by recent court rulings.

Last month, the U. S. Supreme Court refused to let Birmingham, Mich., officials place a Nativity scene, with no other decorations, on the front lawn of City Hall. The court let stand a ruling that the action violated the constitutional principle of separation of church and state.

Nativity Scene Allowed

But the high court ruled in 1984 that a municipal Christmas display in Pawtucket, R.I., could include a Nativity scene. That decision put emphasis on the fact that the display included other holiday decorations such as Santa Claus and teddy bears that diluted the scene’s religious meaning.

This year’s Nativity scene in Downey is accompanied by a sign that declares, “Display solely owned and erected by Downey Christmas Association, a private organization.” A snowman, provided by a local merchant, is positioned under the city arch, and the city put up red, white and green Christmas decorations along both sides of Civic Center Drive.

“The snowman sitting in the arch makes a mockery of the issues,” Sobel said. The placement of the Nativity scene “continues to give the impression the government sponsors it and it’s there so it can draw on the prestige of government.”

Mayor James Santangelo declined to comment on the case pending Friday’s hearing, but Councilman Robert Cormack lashed out at the ACLU.

“It appears to me that they’re really straining to find something to be busy about,” Cormack said. “I think they’re doing a disservice to fellow man and to our country.”

If the judge orders removal of the creche from the Civic Center, Evans said: “ . . . we’ll just have to play it by ear. It’s absurd to assume that the city is showing approval or preference for any religion.”

The ACLU is seeking summary judgment next week in another case to prevent a menorah from being displayed in Los Angeles City Hall.

Shimer decided on Dec. 6, 1985, that the menorah could not be lit inside City Hall, as originally planned, but he allowed an unlit menorah to be displayed. The ACLU wants to prevent the menorah--lit or unlit--from being displayed in City Hall.