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Atheists Win Final Round In Santa Monica Nativity Scenes Battle

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

Hector Gonzalez
Staff Writer

May 1, 2015 -- An annual homespun tradition of staging nativity scenes at Pacific Palisades Park -- born during the Eisenhower era and kept alive over the years by a coalition of local churches -- ended Thursday when the 9th District Court of Appeal upheld Santa Monica's ban on multiple-day displays at all City parks.

In upholding a 2012 U.S. District Court judge's decision in favor of the City, the three-judge Court of Appeal ruled that Santa Monica's parks displays ordinance does not violate the free speech rights of the Santa Monica Nativity Scenes Committee, a group of about a dozen area churches that took over organizing the elaborate two-block display in 1983.

William Becker, an attorney representing the Committee, did not respond to an email. But published reports quoted Becker saying he would not appeal Thursday's ruling.

If so, it brings an end to a custom that began in 1955 when residents first placed large dioramas in the park depicting biblical scenes of the nativity.

Thursday’s ruling was set in motion in 2003, when the City approved a lottery system for handing out display permits for Palisades Park in an effort to keep the “Winter Display” tradition going in the face of growing charges of religious favoritism. For eight years only religious groups applied.

Then, in 2011 what had been a benign holiday attraction suddenly morphed into a heated forum for conflicting views on religion.

“Applications for Winter Display surged,”  the Appeal Court said. “That year a number of atheists who opposed placement of religious displays in Palisades Park applied for Winter Display space in what the Committee alleges was a coordinated attempt to keep the space away from the Committee and other religious groups.”

After even more permit applications flooded the City the following year, Santa Monica moved to ban all multiple-day displays at the park.

In arguing the case before the Court of Appeal in February, Becker said the City allowed hecklers to rule the day by imposing a sweeping ban that hurt his clients' right to freedom of expression.

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,” he told the panel. “They didn’t have to ban everything.”

But the Court said the “heckler's veto doctrine” doesn't apply in the case, and agreed with the lower court that the ban was “content neutral” because it applied to all groups.

Although the Court agreed that City Council members during discussions on the ban “expressed fear that the display controversy would escalate and turn ugly,” those concerns didn't rise to the legal standards set in the heckler's veto doctrine, the Court said.

“The prototypical heckler's veto case is one in which the government silences particular speech or a particular speaker due to an anticipated disorderly or violent reaction,” the Court said.

The Court also said the City had the right to preserve “the aesthetic qualities of Palisades Park” and respond to patrons' complaints that the displays blocked views of the ocean. It also agreed with the City's justification that it was costing thousands of dollars a year in staff hours to administer the lottery system.

But the panel agreed that, end the end, the atheists succeeded in doing what they set out to do -- remove religious depictions from Palisades Park.

“The repeal of the Winter Display exemption did, in some sense, ratify the atheists' opposition to the nativity scenes; the atheists started a 'controversy' over the scenes, and the City reacted by excluding the scenes, along with all other unattended displays,” the Court said.

“We would expand the heckler's veto doctrine significantly, however, if we held here that the doctrine applies to neutral regulations that to not target particular speech,” said the Court.

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