CITY HALL — A nonprofit suing City Hall to restore nativity scenes to their winter-season home in Palisades Park filed an injunction this week that, if approved, would only allow displays that celebrate seasonal holidays in the public space.
The motion is aimed directly at groups of atheists who applied for and won 18 of the 21 available spaces for displays in 2011, and used them to erect signs that some felt denigrated Christianity.
The signs — like one that juxtaposed Santa Claus, the Roman god Neptune and an image of the devil and called them all myths — detracted from the nonprofit’s message, said William Becker, an attorney representing the Santa Monica Nativity Scenes Committee.
“Everyone’s free to express whatever they want to express, they just don’t have a right to counter a celebration policy with insults and protests,” Becker said. “They can do it so long as it doesn’t disrupt the activity or the event.”
The call for the injunction follows a lawsuit filed Tuesday alleging that the City Council erred in shutting down the nativity scene displays because they did so to avoid controversy rather than out of concerns about its constitutionality.
In the injunction, Becker alleges that an ordinance enacted by the City Council in June showed “constitutionally intolerable preferential treatment to people who exhibited hostility” to the scenes, thereby forcing their ouster from Palisades Park.
The scenes have been allowed there between the end of November and beginning of January for 57 years.
The City Council ended the practice by refusing to exempt the signs from a wider city ban of unattended displays in public parks, a decision precipitated by a ruckus caused when the number of applications for spaces exceeded the number of spots available for the first time in the history of the tradition.
City officials created a lottery system that allowed single organizations to apply for up to nine spaces so they could make the selection without being accused of running afoul of the First Amendment by showing preference to one group over another.
Atheists, largely from outside the city, snagged the vast majority of the spots, leaving two for Christian churches and one for a Jewish organization.
Atheists put up signs quoting Supreme Court decisions about the separation of church and state and founding fathers like Thomas Jefferson deriding religion. Many spaces were left blank.
Supporters of the nativity scenes accused them of purposefully disrupting the tradition and called on the City Council to force them to give the unused spaces back.
In response, City Attorney Marsha Moutrie recommended that the City Council discontinue the whole process, citing the enormous cost on staff to run the lottery system and the impossibility of restricting the content of the signs without impinging people’s free speech rights.
After considerable public process, the City Council voted unanimously to end the tradition. Councilmembers Bobby Shriver and Pam O’Connor were absent.
In his injunction, Becker counters that the restriction was too broad, did not give the churches an alternative to express themselves and did not serve “a significant government interest.”
Furthermore, the change in policy was in response to protests by the atheists, which Becker describes as “the hecklers’ veto.”
Michael Khalili certainly doesn’t consider himself a heckler.
Khalili is the president of Atheists United, a Los Angeles-based organization that was responsible for a sign that read “Love is within you.”
In Khalili’s mind, atheism is a positive message, and not one that can be excluded from a public forum like a prominent park in Santa Monica.
“Atheists United has several positive messages, and to say that we are disrupters is to ignore those messages,” Khalili said. “If the program will continue, we will make every effort to be included in the program.”
Even so, the Santa Monica Nativity Scenes Committee may have an uphill battle ahead of them, said Charles Haynes, director of the Religious Freedom Education Project at the Newseum who writes and speaks extensively on religious liberty and religion in American public life.
Although Haynes did not rule out the possibility that the group could prevail in its injunction, he felt that City Hall was able to dictate what happened in its own park as long as it was even-handed and content neutral.
It’s not up to the government to judge what “celebrates seasonal holidays” and what does not.
“That’s the problem, people have the right to see these things from their own view,” Haynes said. “That’s why we have the First Amendment, to create a marketplace of ideas.”
The injunction will go before a federal court judge, potentially soon enough to get the dioramas up in 2012 if it’s approved.
“At the end of the day, freedom is messy, and free speech is messy,” Haynes said. “If people don’t like the messages, they can counter with messages they do like, but not keep out other messages.”