A federal court dismissed a case brought by a group of Christians against the city of Santa Monica for not allowing any holiday displays in a public park this year after opening up a limited public forum there last year in response to an atheist group’s protest of a Christian-only display policy prior to that. You can read the full ruling here.
Santa Monica had allowed a nativity scene in the park for decades, but a couple years ago a local atheist named Damon Vix complained about it and the city, as it was legally required to do, turned it into a limited public forum and held a lottery system to determine who could put up displays. When atheists won 18 of the 21 spots, the city decided this year to just do away with all displays. Legally, that’s what they have to do — either it’s a public forum or it’s a closed forum, one or the other.
Vix had won 14 of the 21 slots, but he only put up one display — unfortunately, one that included a fake quote from Thomas Jefferson. The plaintiffs in this case demanded not a return to the lottery system but a return to the old system where only religious — that is, Christian — displays were allowed. The court ruled that the city’s new policy is, obviously, viewpoint-neutral, since all displays are prohibited. So the plaintiffs tried to argue that banning all displays amounted to a “heckler’s veto,” but the court rightly saw the absurdity in that argument:
“A ‘heckler’s veto’ is an impermissible content-based speech restriction where the speaker is silenced due to an anticipated disorderly or violent reaction of the audience.” …
First, this case does not fit within the concept of a “heckler’s veto” because it involves competing speech rights, not suppression of a message because of the audience’s reaction to it. Those who opposed Plaintiff’s displays — the claimed “hecklers” — also applied for spaces to erect Winter Displays and the City was constitutionally obligated to treat those applications equally to Plaintiff’s, even if they resulted in opposition messages…
That put the City on the “horns of a dilemma: it could not constitutionally pick and choose among competing applications, but granting them all likely would compromise the aesthetic and historic elements of [Palisades Park].” The City opted to ban all private unattended displays, which is a content-neutral, permissible solution to the problem the City faced, as discussed more fully below.
Further, a content-neutral law does not become a content-based law simply because it was motivated by those on one side of the debate. Thus, even if the City Council was motivated by a desire to resolve the dispute created by the conflicting applications for Winter Displays, it did so without singling out Plaintiff’s speech for regulation, while allowing others to erect displays with other messages.
That should be the end of the legal controversy, though not the social one. They’ve already figured out a way around the ruling, which is to have a live display instead of an unattended one. But they can only do that for a short time:
A national coalition of Christian groups has joined the fray over the ending of the nearly 60-year tradition of Nativity scenes at a park in Santa Monica, Calif., by announcing it will hold a “Live Nativity Display” on Saturday, Dec. 8. The announcement comes on the same day a U.S. District Judge officially dismissed a lawsuit filed by a local church coalition seeking to challenge the city’s ban on Nativity and other seasonal displays in public areas.
The Live Nativity Display campaign is being led by the Christian Defense Coalition and Faith and Action, which are both based in Washington, D.C., along with local Southern California Christians and pastors.
“Sadly, we are seeing an erosion of expressions of faith in the public square,” said the Rev. Patrick J. Mahoney, director of the Christian Defense Coalition. “This is especially true during the Christmas season. We must be constantly reminded that the Constitution promises freedom ‘of’ religion not freedom ‘from’ religion.
Such a tired old cliche. The constitution requires both, of course; you do not have freedom of religion unless you have freedom from the imposition of other religions.
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