Victory for first amendment: judge rules that Santa Monica can ban nativity scenes

A correct legal decision for the wrong reasons! Still, here’s an early holiday present: according to The Los Angeles Times, nativity scenes will not be allowed in a public park in Santa Monica, California:

In a closely watched case that has attracted national attention, Judge Audrey B. Collins denied a request from the Santa Monica Nativity Scenes Committee to erect multiple large displays depicting the story of the birth of Jesus in the park overlooking the ocean. The coalition of churches has erected the displays every December since the 1950s.

PHOTOS: Battle over Christmas displays

But last year, after requests for display spots exceeded the space allotted, the city held a lottery to allocate spaces. Atheists won 18 of 21 spots. A Jewish group won another. The traditional Nativity story that used to take up 14 displays was crammed into two.

I’m not sure whether the solution to having one religion’s displays on public land is to allow everyone’s religious displays (ego the lottery).  That still leaves some people out, and, even if such “let everyone’s faith be on tap” displays are legal, it would seem better to prohibit all such displays on public land. In the end, the judge decided that the banning involved not religious freedom, but logistical and financial difficulties for Santa Monica:

Controversy erupted, and as a result, the city decided the lottery would become increasingly costly. Last June, the City Council voted to ban all private unattended displays.

In October, Nativity scene proponents filed suit in federal court to allow the traditional Christian displays to continue. In a 27-page tentative ruling, Collins denied the group permission to erect their displays this year while the case is pending.

ABC News quotes from the ruling:

The coalition of churches that had put on the life-sized, 14-booth Nativity display for decades argued the city banned it rather than referee a religious dispute that began three years ago when atheists first set up their anti-God message alongside the Christmas diorama.

This is exactly why all such displays should be banned: so that judges don’t have to referee such disputes. In that sense the coalition of churches is correct.

The judge, however, said Santa Monica proved that it banned the displays not to squash religious speech but because they were becoming a drain on city resources, destroying the turf and obstructing ocean views. Churches can set up unattended displays at 12 other parks in the city with a permit and can leaflet, carol and otherwise present the Christmas story in Palisades Park when it is open, she said.

But that would seem to violate the First Amendment.

“I think all of the evidence that is admissible about the aesthetic impacts and administrative burden shows that this was a very reasonable alternative for the city to go this way — and it had nothing to do with content,” she said during a hearing in federal court in Los Angeles.

Yeah, right. As is often the case, the religious coalition makes a ridiculous comparison:

“The atheists won,” said William Becker, attorney for the Nativity group. He then went on to compare 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.”

Well, the atheists did the right thing by entering the lottery, but there shouldn’t have been any lottery. If people want to put up scenes of baby Jesus at Christmas, let them do it on private land. What’s the insistence on using public parks for such displays, if not to deliberately breach the U.S.’s wall between church and state?

h/t: Linda Grilli


  1. Tony61
    Posted November 21, 2012 at 1:05 am | Permalink

    “Pontius Pilate was exactly the same kind of administrator.”

    This diminishes their hero fable. Disallowing a display of plastic figurines is equal to crucifying their alleged God?

  2. Posted November 21, 2012 at 1:07 am | Permalink

    Is that the same William Becker that represented David Coppedge?

  3. Steve in Oakland
    Posted November 21, 2012 at 1:23 am | Permalink

    Here’s a pre-nativity scene for them:

  4. Tyler
    Posted November 21, 2012 at 5:09 am | Permalink

    I’m assuming you’re not personally familiar with this display in Santa Monica. As a Santa Monica resident and atheist, I can tell you that this display is more of a city tradition than a religious statement. I loved seeing it up every year from a nostalgic point of view and for the fact that it signified the start of the holiday season. You don’t agree with its message? Cool. You don’t believe in what it symbolizes. It’s not a requirement of living in SaMo. But don’t ruin it for everyone else. I’m tired of over-sensitive Christians AND atheists who have to see everything as an attack on their first amendment rights. Get over yourself.

    • Grania Spingies
      Posted November 21, 2012 at 5:35 am | Permalink

      This wasn’t a group of atheists lobbying though, was it? It was just an application made by a Christian group that was denied.

      While I am all for tolerance, there is also a tradition of one particular religion getting special status all the time. The issue here isn’t some “tiresome” atheist group, but a Christian group complaining that they were not being given special privilege any longer.

    • gbjames
      Posted November 21, 2012 at 5:52 am | Permalink

      Tyler, I don’t remember exactly… it has been a while since been in Santa Monica. Does the city suffer from a shortage of private property?

    • Posted November 21, 2012 at 7:59 am | Permalink

      Hmmm, “get over yourself” seems to apply to you, Tyler. Sorry, just because someone whines about “nostalgia” isn’t a reason to ignore civil rights. If we bowed to everyone citing “nostalgia” aka “it’s always been done this way” when it comes to religion, nothing would ever change. If you are so desperate to see nativity scenes, I suggest you hie yourself over to a church, where you *should* be able to find as many as you want.

    • Sastra
      Posted November 21, 2012 at 9:38 am | Permalink

      If the display was more of a “city tradition” than a “religious statement,” then the lawyer wouldn’t have compared the city to Pontius Pilate, nor would the Christians have thrown a fit over the insult to their religion. Instead, everyone would have laughed at the atheists because nobody takes that stuff seriously anymore, it’s like protesting Cupid on Valentine’s Day.

      You appear to suppose that the Nativity is ceremonial deism. You suppose wrong.

    • Notagod
      Posted November 21, 2012 at 10:47 am | Permalink

      Oh hay, don’t worry so much about it, (spoiler alert!) baby jesus just grows up and asks people to fondle ‘is innards. No mystery to get all sentimental over.

    • H.H.
      Posted November 21, 2012 at 3:34 pm | Permalink

      Sorry, the Constitution is more important that your nostalgia. Get over it yourself.

  5. Posted November 21, 2012 at 6:30 am | Permalink

    I don’t think I entirely agree. I think the judge made the right decision for the right reason, and that religious messages should not be outfight banned on public land. They should be subject to a fair system, like the lottery, but it is public land, meaning it is a public space. Should religious messages be banned from all public space, like street corner soapboxes or protests?

    The separation of church and state means not favouring a religion or belief over non-belief. No privilege and no endorsement. It is not about stifling religious messages in public. No privilege is given to religions in the lottery method. Banning it in public spaces is arguably violating the other side of the wall of separation, that of freely practising belief.

    It is publc space, not “endorsed by government” space.

    • Sastra
      Posted November 21, 2012 at 9:41 am | Permalink

      There is a difference between “public space” supported by tax dollars and “out in public.”

      The atheists didn’t have a problem with the lottery. The Christians did.

      • gbjames
        Posted November 21, 2012 at 9:59 am | Permalink

        I think saying that atheists don’t have a problem with the lottery overstates it. Atheists used that mechanism to make a point. It is the same thing that happens every year when FFRF puts up a display next to Xtian nativity scenes in state capitals and (for example) in the Milwaukee County Courthouse where I live. We would prefer not to bother with this at all. But as long as governments allow sectarian displays to exist atheists are compelled to respond.

      • Posted November 23, 2012 at 6:33 am | Permalink

        > There is a difference between “public space” supported by tax dollars and “out in public.”

        No, there isn’t. Any in the public sphere is supported by tax dollars, from legal protections to environmental and upkeep. How is a public park different from a public sidewalk (protest, soapbox) or a public street (parade) in your context? What area of public sphere is not supported by tax dollars?

  6. Posted November 21, 2012 at 7:56 am | Permalink

    hmmm, Pontius Pilate was necessary for Christians to get their magic prize. Per their own bible, PP was put in place by their very own god and did *exactly* what this god required of him. No PP, no human being murdered for this god’s whim.

    I do like how this whole thing has ended up with the municipality wanting nothing to do with the whole thing presenting a good reason why they did what they did, and the Christians whinging that they can’t force their religion on others, evidently being unable to put their own religious nonsense on their own land.

  7. Explicit Atheist
    Posted November 21, 2012 at 8:16 am | Permalink

    The court was following the existing legal precedent which basically declares that if a government entity allows private displays on government property than ipso-facto that government has created a free expression zone and therefore the display is legal provided that everyone else is given equal opportunity to put up displays. There is a problem with this.

    Often, when a government allows a private display on its property, it is doing so only during a short period of time that just happens to correspond with the day that Christians celebrate Christmas and the display is for celebrating that holiday. Yet this legal precedent ignores that the timing and content context contradicts the free expression for all premise that is the basis for this existing legal precedent. The free expression zone defense is clearly disingenuous.

    So I agree with Mr. Coyne. At a minimum, to qualify as a free expression zone, the display on government property should not be limited to the time of Christmas. Private Christmas displays on government property that appear only during Christmas should be presumed to be unconstitutional instead of being presumed to be constitutional until proven otherwise, which is the current disengenuous approach.

    • Fatboy
      Posted November 21, 2012 at 9:17 am | Permalink

      Thanks for that. When I first read Dr. Coyne’s original post, I was thinking that the lottery was a good idea, since it opened up the space to anyone who wanted to use it. But I’d overlooked the point about the timing of it.

      I wonder at what point Christmas will become as secularized as Halloween. It seems to be well on its way, but I know of very few people who go to church on Halloween or All Saint’s Day (unless it happens to fall on a church day, which includes Wednesday’s down here in Texas). Would anybody have a problem with a city putting up Halloween decorations in a park given that holiday’s Christian origins, or would those be okay? Is it the explicitly religious aspect of the Nativity that’s the problem?

      • Fatboy
        Posted November 21, 2012 at 9:19 am | Permalink

        Just to be clear, I realize Halloween has origins well before Christianity and influences from other religions, but so does Christmas.

      • gbjames
        Posted November 21, 2012 at 9:25 am | Permalink

        “I wonder at what point Christmas will become as secularized as Halloween.”

        For a great many people it already has been. I think this is what freaks Xtians out. Their energies are directed at retaining/restoring as much religion as they can to a holiday that is dominated by presents and trees, all enjoyable to atheists (and Jews, and…) as much as to Xtians.

      • Sastra
        Posted November 21, 2012 at 9:49 am | Permalink

        I consider Christmas a secular holiday. Its roots go far back and the vast majority of the celebration and ideals are humanist: festivity, friends, family, and food …generosity, charity, peace, and good will. Some people choose to pretend it is religious, and some of those choose to pretend it has to do with a god named Jesus.

        Keep the Christ out of Christmas.

        It’s a national holiday. It’s officially secular. They can’t hold it to themselves.

        • Posted November 21, 2012 at 9:58 am | Permalink

          Indeed. Let’s put the Yule back in Yuletide. Io Saturnalia, too, while we’re at it!


          • HaggisForBrains
            Posted November 21, 2012 at 10:13 am | Permalink



      • Explicit Atheist
        Posted November 21, 2012 at 7:14 pm | Permalink

        Fatboy asked: “Is it the explicitly religious aspect of the Nativity that’s the problem?”

        Answer: Yes. Celebrating the birth of a deity is religious, while Jack-o-lantens, scary costumes, and the like are at least several steps removed from All Saints Day. Plus it is common practice to re-schedule the church worship service for All Saints Day to the following Sunday, so there is no government shut down that results in a corresponding federal holiday. Understand, there is NO problem whatsoever with public displays or celebrations of religious worship PROVIDED that is not government co- sponsored. It is ONLY the COMBINATION of government sponsorship and religious content that is discriminatory and therefore “offensive”. Democratic government is obligated to avoid taking sides regarding what citizens should believe about gods or political parties or commercial products and the like, those are protected areas of individual liberty outside the proper scope of government influence.

  8. Bebop
    Posted November 21, 2012 at 8:30 am | Permalink

    Like it or not, christianity played a major role in western civilization. To ban references to christmas is absurd. It is like this at the my children’s daycare. They can’t talk about christmas tree, or who is that baby who seems to be related to Christmas.. It may offend other cultures…

    That North America has been colonized mostly by christians that carried their traditions with them, and that those traditions are still alive today, that shouldn’t offend anyone. It is part of the history, of the folklore…

    • whyevolutionistrue
      Posted November 21, 2012 at 8:34 am | Permalink

      Yeah, so should we put up nativity scenes on public land? Is it okay to put Christian slogans in schools?

      Yes, we can mention those religious traditions, but NOT IN PUBLIC VENUES, or if they’re part of a comparative religion class.

      This stuff about us being a “Christian nation” is not only untrue (the founding fathers wanted to deliberately un-Christianize it), but makes me ill.

      • Sastra
        Posted November 21, 2012 at 9:55 am | Permalink

        They can’t promote Christmas in terms of “Jesus is the Reason for the Season.” They’d have to mention all the pagan elements and origin, as well as how the celebration has evolved over time.

    • microraptor
      Posted November 21, 2012 at 8:35 am | Permalink

      And they can celebrate it on their own freaking property instead of littering everywhere else with it.

    • gbjames
      Posted November 21, 2012 at 8:38 am | Permalink

      What is absurd is confusing folklore and history with government policy.

      Nobody is advocating a ban on “references to christmas”. What is under discussion is unconstitutional support for religion by government bodies.

    • Posted November 21, 2012 at 8:48 am | Permalink

      I’d be cool with that if the Christian propaganda were put in its proper context.

      Of course, that would mean that most of your display about the the history of colonialism in America would be devoted to the plagues and genocide visited upon the brown-skinned people by the light-skinned people, and the Christian propaganda would be shown as a tool for placating the brown-skinned people and assuaging the guilt of the light-skinned people.

      Somehow, I rather doubt that that’s what you’ve got in mind.


    • raven
      Posted November 21, 2012 at 5:55 pm | Permalink

      Like it or not, christianity played a major role in western civilization. To ban references to christmas is absurd.

      This makes no sense.

      Christianity had a role in western civilization. Sure.

      So we have to put up Xmas displays in public parks?

      One idea doesn’t lead to the other.

      Our western civilization also owes a huge amount to the pagan Roman empire and to science. So are we expected to put up displays for Saturnalia and on Darwin’s birthday. Works for me but I don’t care enough to start doing it.

      • raven
        Posted November 21, 2012 at 6:00 pm | Permalink

        Like it or not, christianity played a major role in western civilization.

        Xianity is a syncretic offshoot of Judaism.

        I suppose to Behop that means we also have to put up public displays in our parks for Yom Kippur, Hannukah, and Rosh Hashanah.

        Judaism is a derivitive of the old Canaanite religions. I suppose we will have to find out what day is sacred to Asherah and put up a display to her as well.

    • Posted November 22, 2012 at 2:57 pm | Permalink

      That North America has been colonized mostly by christians that carried their traditions with them, and that those traditions are still alive today, that shouldn’t offend anyone.

      I wonder how one can claim that celebration of colonization is something that wouldn’t offend anyone.

      • raven
        Posted November 22, 2012 at 4:18 pm | Permalink

        That North America has been colonized mostly by christians that carried their traditions with them, and that those traditions are still alive today, that shouldn’t offend anyone.

        Which tradition?

        The one about breaking the law and violating the US constitution by putting up religious displays on public land.

        That tradition needs to die right now.

        Or do you mean the tradition where xians burn people alive on stacks of firewood for being witches, heretics, or scientists.

        That tradition is pretty much dead and no one but the xians missed it.

        • Posted November 23, 2012 at 3:02 pm | Permalink

          I am not talking about any traditions, Bebop above is :). My contention was only against Bebop’s claim that a celebration of the (violent, but he/she doesn’t say it) colonization of North America should not offend anyone.

  9. Posted November 21, 2012 at 12:18 pm | Permalink

    My blog covered this comment on behalf of the nativity committee: “The birth of Jesus Christ is the linchpin of Western civilization, our calendar derives from it, but now somehow it’s just not right to have a classic depiction of this event in a Nativity scene in a city park,” said Hunter Jameson, head of the Nativity committee.”

    • microraptor
      Posted November 21, 2012 at 2:00 pm | Permalink

      I believe the only reasonable response to someone complaining like that is “Help, help! I’m being repressed!”

    • raven
      Posted November 21, 2012 at 6:23 pm | Permalink

      our calendar derives from it,

      This isn’t true.

      The months of the year are all named for pagan gods and goddesses. Even the ones named after Roman emperors because they were deified after death.

      “The birth of Jesus Christ is the linchpin of Western civilization.

      This isn’t true either.

      It wasn’t the birth of jesus, it was the rise of his religion, xianity.

      And it isn’t the linchpin. It’s one of many influences.

      Western civilization also has its roots in Greek and Roman paganism. Democracy came from the Greeks and isn’t even mentioned in the bible.

      These days one of the main influences on our civilization is science. The salient feature of our Hi Tech civilization is technology that has made us wealthy and given us long and healthy lives and banished such things as demons to the dark minds of some primitive religionists.

      • raven
        Posted November 21, 2012 at 6:51 pm | Permalink

        “The birth of Jesus Christ is the linchpin of Western civilization,..

        This is incorrect.

        Wikipedia says it was classical antiquity, i.e. Greek and Roman pagan civilizations.


        However, Western civilization in its more strictly defined European sphere traces its roots back to classical antiquity.

        Xianity was one of many influences. Much of our modern civilization is derived from Renaissance and Enlightenment ideas. The main feature is also the high standard of living science has given us.

        Civilizations evolve and change. These days xianity is just baggage being dragged along behind our society and holding it back.

      • Posted November 22, 2012 at 6:45 pm | Permalink

        I think he just had in mind the “A.D.” scheme, not the names of the months (or the days of the week).

        Reminds me of an old Creationist adversary on Twitter who claimed that the fact we used “A.D.” proved that Jesus did exist and was Our Lord… 😮


  10. suwise3
    Posted November 21, 2012 at 4:02 pm | Permalink

    Both sides have displays in cages. They should all be freerange. This just makes me sad.

    • Posted November 22, 2012 at 6:46 pm | Permalink

      Perhaps they can use freerange eggs for the Easter displays…


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