A Christmas Eve Ultimatum : City Told to Remove Nativity Scene or Face Suit

An earnest young man in horn-rimmed spectacles issued an eviction notice Tuesday to oust Joseph, Mary and Jesus from Balboa Park.

Stephen Thorne, director of the San Diego chapter of American Atheists, delivered the ultimatum to San Diego Mayor Maureen O’Connor at 10:38 a.m., vowing to sue the city in federal court if the venerable eight-scene Nativity display, which is drawing crowds to the park’s Organ Pavilion, is not removed before noon on Christmas Eve.

O’Connor’s answer: “Fine, I’ll see him in court.”

Thorne, 33, is a follower of Madalyn Murray O’Hair, who gained national notoriety by winning a 1963 Supreme Court ruling banning prayer in schools. He said the Balboa Park display violates the state and federal constitutions, which mandate the separation of church and state.

Thorne announced his Dec. 24 deadline (he does not recognize Christmas Eve) at a news conference Tuesday at the offending Nativity. His words of warning were drowned out in the blare of recorded Christmas carols from loudspeakers surrounding the scenes from the life of Christ that he wants to banish from public property.

Thorne said he delivered a “nice” letter to O’Connor last week asking the city to “disentangle itself from religious displays by asking the persons responsible for the display to erect it on land owned by some religious organization in future years . . . “ but had received no answer.

In a hand-delivered letter to the mayor Tuesday, Thorne was more direct: “You have acted illegally in that you have directed your city attorney to issue a statement that the addition of religious litter (a Jewish menorah) to the already unconstitutional display at the Organ Pavilion in Balboa Park is constitutional.”

He asked the mayor to reverse her stand allowing the religious displays in the city park, pointing out that O’Connor and other elected city officials involved had taken an oath of office, pledging to uphold the Constitution.

Citizens “have a right to constitutional conduct on the part of American officials whether such action is politically expedient or not,” Thorne said.

No More Explanations Due

Paul Downey, O’Connor’s press secretary, said he has “explained the mayor’s position to him on two occasions” and feels Thorne is due no more explanation. “The mayor has every intent of having the display in the park again next year,” as it has been for more than 30 years, he said.

City Atty. John Witt sighed at the mention of Thorne’s newest challenge. He said he had read the latest court opinions on display of religious scenes in Chicago’s Daley Plaza, “and the judges leave open the matter of placing the religious displays on property other than the ‘seat of government,’ or City Hall.”

Placing a Nativity scene in City Hall would convey government endorsement of the religious material, Witt said, “but I don’t believe the same is true of a religious display in a city park.”

Thorne contends that the Chicago ruling by appellate judges last August “said flatly that if it was a religious display, which it was, it was unconstitutional to put it on public property.”

His solution for the San Diego display is for the city to donate the Nativity figures to a church to be displayed on their property, not the city’s.

The atheist admitted that “realistically, we probably won’t get around to filing suit against the city until late this year or early next year” because “this is our busy season. There are a lot of violations this time of year.”