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Battle Over Santa Monica's Nativity Scenes Continues

Santa Monica Real Estate Company, Roque and Mark
By Jason Islas
Staff Writer

April 2, 2013 -- The battle over whether religious groups can display Nativity scenes in parks continues as counsel representing the Santa Monica Nativity Scenes Committee prepares to appeal the dismal of their case.

William J. Becker, Jr., who has argued that the City is violating constitutional rights by banning unattended displays in public parks, said that he is planning to appeal a decision made by a Ninth Circuit Court judge in November who said the City was within its rights.

“The City has been trying to say that they are not acting unconstintutionally by banning religious speech in Palisades Park,” Becker said.

But he maintains that “the purpose of banning all private, unattended displays was to supress particular speech, in this case, the Nativity scenes.”

He argues that the City banned the displays in response to “a heckler's veto,” or a hostile reaction by certain members of the public.

The City, which has had a general ban on unattended displays in parks, originally allowed the Nativity scenes -- and other displays related to winter holidays -- as an exception to the rule.

The City eliminated the exception after, in 2011, atheist groups overwhelmingly applied for slots at Palisades Park and used the 18 display spaces they had won in an auction to post signs denouncing religion or they left the spaces empty.

“It's a public park and religious speech is just as protected as other types of speech,” Becker said, adding that the displays could be banned only if there was a “substantial governmental interest” at stake.

Recently, the City released a report claiming that banning the displays had reduced the number of hours staff spent working things related to the displays from 245 over several months in 2011 to 80 in 2012.

The drop-off in hours was largely because “we didn't have to do the whole lottery process,” said Wendy Pietrzak, a senior administrative analyst. “We didn't have to accept applications.”

In 2011, the City switched its usual first-come-first-serve system that it had used for 60 years to a lottery as a content-neutral way of deciding which applicants would get spots.

“We didn't want, when we opened the office at 7:30 a.m., to have a line,” Pietrzak said.

Becker is unconvinced by the report. He believes that the City would have saved labor if it had continued to use the first-come-first-served system.

Becker, who will filed the opening brief for the appeal before June 11, is determined to keep fighting the issue and to seek an injunction on the ban during the holiday season until the matter is resolved in court.

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