Atheist Vows to Appeal Judge’s Ruling Allowing Balboa Park Nativity Scene

An atheist activist vowed Tuesday to challenge a San Diego judge’s decision that a Nativity scene on display in Balboa Park does not violate a constitutional ban on mixing church and state.

In the second ruling in 10 weeks from the San Diego federal court on the emotionally volatile issue of religious symbols on public land, U.S. District Judge Marilyn L. Huff ruled Friday that the Nativity scene is legal.

Huff’s ruling reached the opposite result from a Dec. 3 decision by U.S. District Judge Gordon Thompson Jr., who said that the prominent crosses that for decades have topped two public parks, Mt. Soledad in La Jolla and Mt. Helix in La Mesa, must come down because they violate state constitutional law. But Huff said there were critical differences between the two cases.

Activist Howard Kreisner, who brought both cases, said Tuesday that he sees no difference and will appeal Huff’s ruling to the U.S. 9th Circuit Court of Appeals, the federal appellate court one rung below the U.S. Supreme Court for nine Western states, including California. “This is just an interim step on the way,” Kreisner said of Huff’s decision.

In her ruling, Huff said the Nativity scene--figures depicting the birth of Jesus Christ--is a temporary exhibit that went up at Balboa Park’s Organ Pavilion only after city officials issued a “first come, first served” park permit to organizers, the San Diego Community Christmas Center Committee.

The scene is part of a larger display that also includes lights, a Christmas tree, reindeer figures and a Santa Claus. It went up Dec. 6 and is scheduled to come down in early January, said Paul Schmidt, a San Diego insurance agent who heads the committee.

Because the city makes the park pavilion available to almost anyone with a temporary exhibit who can follow the permit process, the fact that one of the exhibits is a Nativity scene crosses no constitutional lines, Huff said.

She said the city’s role in issuing the permit for a public park did not violate a state constitutional ban on expressing a “preference” for any one religious belief.

In the Dec. 3 ruling, Thompson said the Mt. Soledad and Mt. Helix crosses violate that state ban, since they are “powerful religious symbols” on public land, giving the appearance that government favors Christianity above other faiths. Thompson also ordered the city of La Mesa to remove depictions of the Mt. Helix cross from its official insignia.

The Mt. Soledad and Mt. Helix crosses, Huff said, are permanent religious symbols. But the Balboa Park display is a temporary exhibit put up after a community group obtained a permit available to religious and non-religious groups, she said. Though subtle, that distinction is why the two cases are different, she said.

Schmidt said he applauded Huff’s ruling. “The people in this community want this thing,” he said, referring to the Nativity scene. “As long as I’m involved in it, I’m going to work my head off to make sure the thing (happens) every year. And the best place to display it is in the park, where it can be seen.”