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Church Coalition’s Appeal of Santa Monica Nativity Scene Ouster Rests with Court

Santa Monica Real Estate Company, Roque and Mark

Pacific Park, Santa Monica Pier

Harding Larmore Kutcher & Kozal, LLP  law firm
Harding, Larmore
Kutcher & Kozal, LLP

By Hector Gonzalez
Staff Writer

January 10, 2015 -- A three-member panel of judges will decide whether Santa Monica violated the civil rights of organizers of a living nativity scene at Palisades Park when the City banned all public displays at the park in 2011.

Convening in Pasadena, the three-judge panel of the Ninth U.S. Circuit Court of Appeals heard arguments this past Friday from attorneys William Becker, representing the Santa Monica Nativity Scenes Committee, and Evan Chen, representing the City.

Becker centered his argument on a legal doctrine known as the “heckler’s veto” – which happens when a government stops a public demonstration in order to preserve the peace after the actions of two competing groups of demonstrators result in a threat to public safety.

He argued that the City’s ban was essentially an extension of the heckler’s veto, because it was imposed as a result of atheist groups creating controversy and contention at Palisades Park.

The City then used the controversy as the basis of its decision to bring an end to the 60-year-old nativity scenes tradition, he said.

That had been the goal of the atheist groups all along, Becker told the court.

“When a city shuts down a forum in response to a bully, it must comply with constitutional norms,” Becker told the judges. “Government can’t hide behind a content-neutral statute when its underlying purpose is to silence speech.”

But Judge Jay Bybee disagreed.

“From what I understand, a heckler’s veto is when a particular speaker is silenced, but everyone else is allowed to speak,” Bybee said. “That’s not the situation you have here.”

Becker said City records are “replete” with comments from City officials saying they were imposing the ban “in response to the controversy” caused by atheist groups.

“They could have narrowly drawn the statue,” Becker said. “They didn’t have to ban everything.”

The Nativity Scenes Committee, a coalition of 13 area churches, appealed the case after Judge Audrey B. Collins of the U.S. District Court in Los Angeles in 2012 ruled in favor of the city and denied the committee’s request to require the City to allow the display in the park.

Nativity scenes organizers started the tradition in 1953, when they received an exemption from a City ordinance granting them permission for a religious display on public land featuring live actors portraying Bible scenes.

It was a tradition for decades until atheists groups complained the City was favoring one religion over another.

Bowing to the pressure, the City in fall 2011 created a lottery to allow other groups to vie for display spaces at Palisades Park. Eighteen groups not tied to churches or synagogues applied that year and received permits to hold “solstice” displays.

But many of the displays were actually sponsored by atheists groups that used the forum to mock Christianity. After residents complained, the City Council voted to ban all public displays at the park.

In court Friday, Becker said the City bowed to “bullying” by atheists groups by imposing the ban.

But Chen said the City had gone out of its way to accommodate the displays, spending hundreds of staff hours trying to figure some way to appease nativity scene organizers, the counter-demonstrators and residents.

In the end, however, trying to accommodate all the different groups proved too costly for the City, he argued. City Council members then imposed the ban in response to those escalating costs, not because of the controversial content of some of the displays, Chen said.

In 2011, when the City held the lottery for display spaces at Palisades Park, staff at City Hall spent 254 hours that year “managing the displays program,” Chen said.

According a City report, in 2012 staff spent about 80 hours “answering questions and providing information regarding the City’s current regulations and in processing community event permits for winter holiday events.”

In 2013, after ban, “the number of hours was significantly reduced. Staff estimated approximately 21 hours was spent on the above duties.”

Last year, City staff spent just eight hours on the issue, the report said.

“By 2009, 2010, 2011, the record was clear that the administrative burden on the city had increased,” said Chen. “The record is replete with evidence where the City Council, the City staff were trying to find ways to keep the nativity scenes program.”

Although there was “vast public support” for the nativity scenes, City legal staff cautioned the Council against allowing only the nativity scenes and banning other groups, Chen said.

“The City wanted to keep the program, if the City could do so constitutionally,” said Chen.

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