Opinion: Santa Monica City Attorney Misinterpreted Nativity Scene Cases

May 21, 2012

Dear Council Members,
 
It's part of the City Attorney's job to advise you against legal risks, and to recommend actions to minimize those risks. In the case of the Nativity scenes, Ms. Moutrie has done that, and I don't mean to criticize her. She's doing her job.
 
It's your job, as Santa Monica's elected representatives, to look at the bigger picture, and part of that job is to protect the rights of the people to express themselves, rights guaranteed by the First Amendment.
 
In the City Attorney's concern about legal liability, I submit that she has misinterpreted the two Ninth Circuit cases she uses to frame the issue of when a municipality can authorize the display of religious symbols on city-owned land.
 
In the particular, the case involving the Nativity scenes in San Diego (Kreisner vs. City of San Diego) is not a case, as she would have it, about the procedures a city must follow if it is going to allow religious speech on public property, but rather a case about the importance of allowing free expression, including religious speech, in public places.
 
Repeatedly, the majority of the court in Kreisner emphasizes the importance of allowing free speech in "public fora" for, if for no other reason, the sake of the speech itself. Speaking of the San Diego Nativity scenes, the court wrote:
 
"Notwithstanding its strong religious content . . .  we conclude that because the display is private speech in a traditional public forum removed from the seat of government [in Balboa Park, a park, like Palisades Park, not associated with government offices] it does not have the primary effect of advancing religion." (Kreisner, 45)
 
Instead of putting the burden on the sponsors of the Nativity scenes to prove their right to express themselves in the park, the court ruled that the burden was on the city to show that the sponsors should not be able to express themselves. The court noted, that given that Balboa Park is a "traditional public forum" (as Palisades Park is), "absent some compelling state interest, the City cannot forbid the Committee from erecting its display in Balboa Park because of the religious content of the message."
 
The court goes out of its way to protect the rights of free expression; the court notes that even if it were to find that the Nativity scenes in the park constituted a violation of the Establishment Clause, the court would still have to decide whether avoiding that violation would provide "a compelling state interest that justifies placing a content-based restriction on religious speech in a public forum - a restriction that would otherwise be forbidden by the Free Speech Clause." (Kreisner, 46) In other words, avoiding an Establishment Clause violation is not necessarily a compelling state interest.
 
The court found, in any case, that there was no endorsement of religion by allowing the temporary religious displays in the park, in that the court found that the park hosted "an eclectic range of uses throughout the year." The court held, "[b]ecause Balboa Park is a traditional public forum, we conclude that San Diego conveys no message of endorsement by allowing the Christmas Committee to display its biblical booths there." (Kreisner, 48-51)
 
Like Balboa Park, our Palisades Park also hosts an "eclectic range of uses," including many that involve expression, and one wonders if under Kreisner the City would have had to anything when the Nativity scenes were first challenged a few years ago beyond opening up more of the park for competing displays. Sometimes taking a defensive and conservative legal strategy only creates more problems down the line.
 
It is true that the Kreisner court held that San Diego could not sponsor the Nativity displays, nor give the sponsors of the displays preferential treatment. The decision also has language approving the displays because San Diego said it had a "first come, first served" policy when it came to access to the park, although there was no written evidence of the policy and it was clear from the decision that the "first come, first served" procedures could be more general than specific. (The significance of this part of the holding is amplified by the majority's ignoring arguments (and evidence) in the dissent that the San Diego process was not open.)
 
There is nothing in the Kreisner decision that requires a city to have a completely random process, so long as anyone with a point-of-view would have access to the park on a reasonably similar basis. The court made much of the fact that the committee that sponsored the Nativity scenes did not have exclusive access to the area of the park where they were displayed, and of course the Nativity scenes in Palisades Park were not exclusive uses.
 
The City Attorney is asking you to ban a lot of speech from Palisades Park. Looking at the staff report, however, it is hard to find a compelling state interest in banning speech -- speech that is embedded both in the Nativity scenes and in the counter-displays of the atheists -- from the public forum of Palisades Park, especially when one considers that the report ignores the most obvious way to solve the problem of too many competing "displayers" - to enlarge the area of the park open to the temporary displays. The park is about a mile and a half long, and only a small part of it has been made available for the displays.
 
Perhaps more than anything, the decision of the court in Kreisner, as emphasized in the concurrence by Judge Kosinski, is all about how speakers of religious speech cannot be discriminated against (i.e., accorded less First Amendment protection) than speakers of non-religious speech.
 
In this regard, it is worth stepping back for a moment to look at whole of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 
In the very first words of the Bill of Rights, the First Amendment both proscribes Congress from establishing an official religion and prevents Congress from prohibiting the free exercise of religion. The Founders were making about point about religion and government's proper relationship to it; but strictly speaking, once you have the free speech clause, which follows immediately, the free exercise clause is redundant; the clause should be unnecessary, given that religious expression is itself "speech."
 
Obviously the Founders believed that religion was a hot topic; knowing that people reacted badly to having their religious views suppressed, they went out of their way to protect religious expression. The Amendment does not, for instance, specifically forbid Congress from prohibiting the free exercise of art or poetry or philosophy. The Founders knew that just as an established religion is dangerous to liberty and the rule of law, so is the suppression of religion.
 
This is why the court in Kreisner had no trouble finding that San Diego's decision to allow the holiday display was supported by a legitimate secular purpose, namely "the promotion of free expression." I.e., the court found that the expression of a religious message served a secular purpose because it was itself an example of free expression.
 
The City of Santa Monica must protect the free speech views of all, including the religious.
 
Perversely, if you follow the City Attorney's recommendation, you will be using the First Amendment to reduce free speech rights. In practical effect, what will have happened is that a group of "speakers" (the atheist groups who protested the Nativity scenes) will have been allowed to achieve an objective antithetical to the First Amendment - the suppression of the rights of another group of "speakers," namely the members of the churches who sponsored the Nativity scenes.
 
Instead, if you direct staff to open the park up to a temporary, seasonal "free exercise festival" (or call it what you will) where both religious and non-religious "displayers" are given the opportunity to express themselves to the public about metaphysical issues, then the displayers will need to compete against each other in furtherance of the underlying purpose of the First Amendment. It's true, sometimes the clash of ideas can get "ugly," but that is the price we willingly pay for the gift of freedom of expression we have under our Constitution.
 
One also can expect that a free exchange of ideas will encourage all "speakers" to refrain from tactics that hurt their cause; from, for instance, expression that is obnoxious, offensive, or caustic. But if anyone wants to use those tactics, that's not the City's problem. The City's problem would come from suppressing speech, not facilitating it.
 
As for the second case the City Attorney cites, American Jewish Congress vs. city of Beverly Hills, it is sufficient to say that our City Attorney would never allow Santa Monica to behave as egregiously as the City of Beverly Hills did in favoring Chabad's giant menorah, and thus that case is irrelevant.
 
Thank you for your attention,
 
Frank Gruber
 
Frank J. Gruber is a former columnist for The Lookout and the author of Urban Worrier: Making Politics Personal, available at Hennessey + Ingalls and Angel City books in Santa Monica, and on Amazon.com.