Downey Nativity Scene Up Despite ACLU’s 4-Year Suit

Volunteers erected the traditional Nativity scene last Saturday in spite of a 4-year-old lawsuit that accuses the city of showing religious preference by allowing the display on Civic Center parkland.

Superior Court Judge Harvey Schneider is expected to decide next spring if the display violates the state Constitution’s position on separation of church and state.

Downey City Atty. Peter Thorson said that Schneider will take a look at the creche sometime this week and schedule a meeting to discuss what issues will be debated at the trial.

In December, 1985, the American Civil Liberties Union sued Downey on behalf of three residents after city employees and volunteers put up a creche in front of Downey City Hall. The ACLU claimed that the placement of the Nativity scene violated the state Constitution, which prohibits governments from showing a religious preference.

The judge issued a temporary restraining order which forced the city to move the creche to a public park in the Downey Civic Center. But the ACLU did not choose to take the case to trial.

The Downey Christmas Assn., a citizens group, has put up the Nativity scene in the same place in the park for the past three years, in the grassy area surrounding the city arch, a historical city monument.

The scene includes a stable, with baby Jesus in a manger, Joseph, Mary, three wise men, shepherds and animals.

The City Council voted to purchase the creche in 1986 because the old one had fallen apart. When the ACLU threatened to sue the city if it bought the creche, the association was formed, and it raised the $3,250 needed for the purchase.

In October, the ACLU tried to seek a resolution to the lawsuit, but Schneider declined the motion for summary judgment.

ACLU attorney Carol Soble of Los Angeles said that she had been trying to get the case heard for months, and was unsuccessful until the U.S. Supreme Court ruled in July that a Nativity scene in a courthouse in Allegheny, Pa., was unconstitutional because it promoted religious beliefs.

“In that case, the (creche) was inside the courthouse, and ours is outside in a park,” Thorson said. “What distinguishes this scene from others that have been ruled unconstitutional is that we have a big sign which says owned, operated and put up by Downey Christmas Assn.,” Thorson said. “Back East, there was a little sign attached which said (the creche) was donated, and gave the impression that it still belonged to the city.

It does not matter, Soble said, because the Nativity scene in Pennsylvania was also owned by private citizens.

Thorson said the city is not violating the state Constitution because the Christmas Assn. owns the creche and takes sole responsibility for putting it up in a public park each year.

“The city doesn’t own it, or have any control over it. The city didn’t buy it. There was no city money used. It was placed in a public forum area, where anybody can put anything, as long as a permit is required, and there’s no traffic hazard, or something like that,” he said.

But Soble said she does not consider the park a public forum. She said the city designated the area as a public park after the lawsuit was filed, and a site was needed to display the creche.