Santa Monica’s ban on park Nativity displays upheld

A Nativity display in Santa Monica's Palisades Park in December 2011. A federal appeals court Thursday upheld the city's ban on such displays.
A Nativity display in Santa Monica’s Palisades Park in December 2011. A federal appeals court Thursday upheld the city’s ban on such displays.
(Frederic J. Brown / AFP/Getty Images)

Santa Monica’s long battle over Christmas-season Nativity scenes at Palisades Park ended Thursday when a conservative federal appeals court panel upheld a city law that bars unattended exhibits.

A three-judge panel of the 9th U.S. Circuit Court of Appeals decided the ordinance did not violate the free speech rights of the Santa Monica Nativity Scenes Committee, which sponsors the exhibits.

A lawyer for the committee said the decision will not be appealed.

“It is a dead letter,” said William J. Becker Jr., who represented the committee. “It was a longshot to begin with. We were hopeful with a conservative panel we would be able to convince them.”


In a ruling written by Judge Jay S. Bybee, a George W. Bush appointee, the court said the city’s law applied to all groups and did not seek to silence any particular point of view.

“The fact that the speakers who succeeded in crowding the Nativity scenes out of Palisades Park were atheists who explicitly opposed the scenes’ display is surely a bitter pill for the committee,” Bybee wrote, joined by two other George W. Bush appointees: 9th Circuit Judge Sandra Ikuta and 8th Circuit Judge Michael J. Melloy, who was filling in.

But the Nativity scenes were “living on borrowed time” and owed their long existence to the fact that hardly anyone else wanted to put up displays in the park until recent years, Bybee wrote.

Santa Monica residents began erecting large dioramas depicting the Biblical story of Christmas in Palisades Park during the 1950s. In 2003, the city decided that unattended displays would be permitted only in Palisades Park and only during December. All members of the community were entitled to apply for a “Winter Display” in the park, and spots were allotted on a first-come basis.

But in 2011, atheists opposed to the religious displays deluged the city with applications and won a majority of the spots allotted. The Nativity backers and the atheists “both vowed to flood the display-space lottery with even more applications in 2012,” the court said.

Rather than deal with the acrimony and the cost and time of processing so many applications, the city decided to end all unattended displays in the park.


The Nativity committee sued, and a district judge ruled for the city. The committee appealed to the 9th Circuit.

While the case has been in the courts, the committee has erected the displays on private property. A Lutheran church hosted them the last two years.

“We just wish that people would respect the Christmas season and respect Christians for celebrating it, even in public parks where it has been a long tradition,” said Becker, founder of FreedomX, which provides legal representation for conservative and religious liberty causes.

Hunter Jameson, chairman of the Nativity committee, said he was disappointed but determined that the scenes would continue to be displayed somewhere in Santa Monica. He blamed the loss of the park site on “a small group of out-of-town people who caused trouble.”

Twitter: @mauradolan