A woman walks by the new location of the embattled nativity scenes in December. The scenes once stood in Palisades Park before a city ban stopped the longtime practice sending the displays to private property on Ocean Park Boulevard. (Photo by Daniel Archuleta)

A woman walks by the new location of the controversial nativity scenes in December. The scenes once stood in Palisades Park before a city ban stopped the longtime practice sending the displays to private property on Ocean Park Boulevard. (Photo by Daniel Archuleta)

DOWNTOWN — The law firm defending Santa Monica’s nativity scenes has taken the case to the Ninth Circuit Court of Appeals after a defeat in early December that left Palisades Park bereft of its traditional December decorations for the first time in almost 60 years.

Federal Judge Audrey Collins dismissed the case on Dec. 7, siding with city attorneys who argued that the City Council was well within its right to ban the displays.

That’s not the issue that William Becker, an attorney representing the Santa Monica Nativity Scenes Committee, comprised of 13 local churches, wants the Ninth Circuit judges to examine.

“A city can certainly have a policy that disallows private, unattended displays in a public park, but it cannot ban them on the basis of an unconstitutional rationale,” Becker said.

He holds that City Hall took action to ban the displays only after a loosely-connected group of atheists banded together in 2011 to usurp the tradition and erected signs in place of the 14 dioramas or left the spaces empty entirely.

They did so specifically to disrupt a practice that they disliked and in doing so caused a paperwork headache for city officials tasked with overseeing the program, Becker contends.

That amounts to a “heckler’s veto” in Becker’s eyes, a phrase which refers to a situation in which an official organization preemptively stops an act of speech out of fear of the reaction of another group, in this case the atheists.

Collins ruled in December that City Hall laid out a number of good reasons to curtail the practice, including damage to the turf in landmarked Palisades Park and the sheer amount of staff time required to run a lottery program established when, for the first time in the history of the scenes, more applications for display space arrived than there were spots to give out.

Becker’s argument relies largely on transcripts of City Council meetings in which members of the council said directly that they were concerned with some of the reaction coming out of the displays, including threats sent to city staff.

“Their reason was directly tied to the people who were wanting the nativity scenes not to happen,” Becker said. “I think the Ninth Circuit will see the cause and effect in this case.”

Deputy City Attorney Barry Rosenbaum isn’t so sure.

Becker’s argument is the same one that was put to Collins in December, and it was rejected, he said.

“The City Attorney’s Office analyzed this case under standards that First Amendment challenges are reviewed, and we found that the regulations were content neutral, there were significant governmental interests that this is based upon and that alternative means were available to them,” Rosenbaum said.

If the Ninth Circuit Court goes against the Santa Monica Nativity Scenes Committee, the only place left to turn is the U.S. Supreme Court. That court accepts roughly one-tenth of the cases submitted to it in the course of a year.

Collins rendered two decisions in the case. The first, in November, rejected Becker’s motion to allow the displays as the rest of the court case proceeded, and the second dismissed the case outright.

The combination of the two meant that for the first time in 57 years, Santa Monica churches were not allowed to put the displays up in Palisades Park.

Instead, the churches found a strip of private land on Ocean Park Boulevard that belongs to Watts Companies, a commercial real estate firm in Santa Monica.

The company agreed to host all 14 displays as well as a menorah traditionally set up by the Chabad House in Santa Monica, which was also ousted from the park.

Other plans to resurrect the tradition in a new form in Palisades Park fizzled when the concept of “live” nativity scenes hosted by the churches never successfully got off the ground.

 

 

ashley@smdp.com