Santa Monica may bar Nativity and other seasonal displays in public spaces, a federal judge tentatively ruled Monday.
In a case that has drawn national attention, Judge Audrey B. Collins of U.S. District Court in Los Angeles denied a church coalition’s request that the court require the city to allow Nativity scenes to be displayed in Palisades Park this year, as it has for nearly 60 years.
“The atheists won on this,” said William J. Becker Jr., an attorney for the Santa Monica Nativity Scenes Committee, a coalition of 13 churches and the Santa Monica Police Officers Assn. Standing in front of TV news cameras outside the Edward R. Roybal Federal Building, Becker predicted that the court on Dec. 3 would also grant the city’s request that his group’s lawsuit be dismissed.
That likely outcome, he said, marked “the erosion of 1st Amendment liberty for religious speech.” He compared the city to Pontius Pilate, the judge at Jesus’ trial, saying: “It’s a shame about Christmas. Pontius Pilate was exactly the same kind of administrator.”
Atheist groups praised the judge’s ruling as an example of the upholding of the separation of church and state.
“Religion is innately divisive and just doesn’t belong in public parks,” said Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, based in Madison, Wis. “There are tax-exempt churches on every other corner. Why isn’t that good enough?”
Charles C. Haynes, senior scholar at the First Amendment Center and director of the Newseum’s Religious Freedom Education Project in Washington, called Collins’ decision “consistent with other rulings.”
“It’s all or nothing in these cases,” he said. “If the government opens up and creates a limited forum, it can’t practice viewpoint discrimination. But it can say, well, we’re not going to have any.... There has to be a level playing field in the public sphere.”
Since 1953, the coalition each December has erected a tableau of scenes depicting the birth of Jesus Christ.
A few years ago, the tradition offended Damon Vix, an atheist, who applied to put up a booth next to the Nativity story. Last year, he encouraged other atheists to flood the city with applications, including a satirical homage to the “Pastafarian religion” featuring a representation of the “Flying Spaghetti Monster.”
To keep things fair and legal, the city held a lottery to parcel out slots. Atheists won 18 of 21 spaces. A Jewish group won another. The Nativity story that traditionally took up 14 displays was jammed into two.
A flap ensued. Vandals ripped down a banner the Freedom From Religion Foundation had hung at the park. The banner began: “At this season of the winter solstice, may reason prevail.”
Last June, concerned that the lottery would become increasingly costly because of the rising tensions, the City Council voted to ban all private, unattended displays in city parks. The city has cited other reasons for the prohibition, including damage to the park’s turf and some residents’ statements that they would prefer unobstructed ocean views to seasonal displays.
Council members and the city attorney’s office said groups wishing to celebrate the Nativity, the winter solstice or Hanukkah had alternatives. They could, for example, erect displays on private property or station a representative at any display on public ground.
In October, the coalition filed suit, seeking to restore the tradition. At the time, Becker said it was “not the government’s function to avoid controversy at the cost of fundamental rights.”
Barry A. Rosenbaum, with the Santa Monica city attorney’s office, said the city was pleased with the ruling. The judge, he said, “understood the government interests.”
Becker said he would consult with his “brain trust” to determine what step the coalition would take if the judge grants the city’s motion to dismiss. He said he and his clients might consider an appeal, perhaps next year or at some future time when the city government pendulum “would swing back and we’d be back in a sane society where people are tolerant and respect each other for their religious views.”