Federal appeals court upholds city prohibition on park Nativity scene News
Federal appeals court upholds city prohibition on park Nativity scene

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday upheld [opinion, PDF] a Santa Monica, California, city ordinance [municipal code] prohibiting unattended exhibits in Palisades Park, deciding against the Santa Monica Nativity Scenes Committee [advocacy website]. The committee had been granted a “winter display” exception from the city’s 1994 law banning all unattended displays, but amidst religious controversy that exception was revoked in 2012. In dismissing the committee’s complaint that the ordinance violated their First Amendment [text] rights, the court stated, “[t]he repeal [of the exception] was a content-neutral time, place, and manner regulation,” and was therefore not a violation of the group’s right to free speech. The court went on to state:

The fact that the speakers who succeeded in crowding the nativity scenes out of Palisades Park were atheists who explicitly opposed the scenes’ display is surely a bitter pill for the Committee. … [However], by repealing its Winter Display exception, the City did no more than treat all potential displays equally. If the [plaintiffs] feel that the burden of the regulation falls most heavily on them, it is perhaps because they are now held to the same standard as all other similarly situated applicants. While the adjustment may not be an easy one, the outcome is inescapably content-neutral.

The committee stated that it will not appeal the decision further, but will instead erect the scene on private property elsewhere in the city.

Religious displays on public property remain controversial under the First Amendment. In August a judge for the US District Court for the District of New Mexico ruled that a New Mexico city must remove a Ten Commandments monument [JURIST report] placed outside of Bloomfield city hall. Last May the US Supreme Court ruled that the practice of opening town meetings with a prayer [JURIST report] does not violate the Establishment Clause of the First Amendment [text]. In 2011 the Supreme Court declined to rule on whether crosses placed beside highways as memorials to deceased Utah Highway Patrol troopers is an unconstitutional government endorsement of religion, allowing the August 2010 ruling [JURIST reports] by the US Court of Appeals for the Tenth Circuit, which found found the display unconstitutional, to stand.

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