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BECKER: Atheists’ Grinch game in Santa Monica

Court upholds Nativity scene ban

- - Wednesday, December 5, 2012

In Santa Monica, Calif., city leaders earlier this year pulled the plug on a 59-year-old community celebration of the Christmas story -- the birth of Jesus -- in tourist-friendly Palisades Park. The city that for decades billed itself as "The City of the Christmas Story" banished the yuletide tradition after a mischievous band of atheist activists last year secured the bulk of display permits in order to spread their tidings of scorn for the Nativity displays.

Agreeing with the city, a federal judge last week tossed out a lawsuit challenging the new ban. Such is the state of Christmas present.

In Christmas past, Nativity scenes celebrating Christ's birth at Christmastime enjoyed a long and universal life. But it is a tradition that offends the new world order. As one council member said in explaining the city's decision to ban the displays, times change. Bah, humbug, say these critics. Let Christians promote their superstition on private property. Public parks belong to the people. Is this to be Christmas future?

Of course, many people consider the Christmas story to be a vital part of their spiritual lives. Atheists object to Christians' right to propagate the story of the gift of salvation, claiming it is a "myth." It nevertheless is a right they are constitutionally guaranteed, both privately and publicly, just as nonbelievers are assured their right to proclaim a godless universe, however superstitious that may be.

The First Amendment is not restricted to private property. Refusing to allow people to make their views known in a public park or other traditional public forum is a direct infringement on First Amendment rights. Claiming that those rights are protected because people can display Nativity scenes on private property turns the First Amendment on its head.

The U.S. Supreme Court has affirmed time and again that the use of streets and parks to communicate ideas between citizens and discuss public questions has always been a part of the privileges, immunities, rights and liberties of free citizens. Those liberties have been denied to Nativity-scene supporters in Santa Monica.

It is ironic that the very groups who denied that right to Santa Monica's Christians used the public square to display banners disdainful of religion and religious expression. The atheist activists were merely exercising their right of free speech. Among other problems, they misidentified a Supreme Court case, citing Brown v. Board of Education for language contained in Everson v. Board of Education. The beauty of the American system is that even stupid people enjoy First Amendment rights.

The atheist activists admitted that their goal was not to celebrate the inspirational power of unbelief but to coerce the city into canceling the December Nativity tradition. To justify their goal of government censorship, they argued that the tradition made them feel like "outsiders," not full members of the political community.

The leader of the activist group felt perfectly empowered to thwart the city's content-neutral policy of designating, for a period of three weeks one time each year, a small portion of the park to celebrate the season. Under the city's "winter display" policy, one could expect to see the usual secular symbols, such as reindeer, snowmen and Santa Claus. Religious symbols such as Nativity scenes and menorahs also were displayed. That is because, as courts have reaffirmed, private religious speech, "far from being a First Amendment orphan," is as fully protected under the Free Speech Clause as secular private expression.

The city could have resisted the atheist activists' coercive tactics. As some may be surprised to learn, the Establishment Clause of the First Amendment does not bar all governmental preference for religion over irreligion. Indeed, the Supreme Court held in Van Orden v. Perry that when government cooperates with religious authorities -- by adjusting the schedule of public events to religious needs and allowing Nativity scenes to be on display at Christmas -- "it follows the best of our traditions," because it "respects the religious nature of our people and accommodates the public service to their spiritual needs." If this were not so, government would "show a callous indifference to religious groups." There is "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

This is language the city could have asserted. It would have silenced the agitators and kept a Christmas tradition alive for perhaps several more decades. But moral fortitude is not the city of Santa Monica's strong suit, particularly in the misunderstood minefield of First Amendment liberties. Rather, the city wilted under pressure, daunted by the delusional estimation that the atheist activists must know something the city did not, regardless of more than half a century of tradition.

By ratifying the hecklers' veto over the rights of Christians to carry on their custom of displaying Nativity scenes within a public park setting, the city sent a strong message to the world: In Santa Monica, Christians are the outsiders. Their message of "peace on Earth, good will toward men" sparks disharmony and disunity and is unwelcome. That's a message most of us will hardly find uplifting or unifying.

William J. Becker Jr. was lead counsel in Santa Monica Nativity Scenes Committee v. City of Santa Monica.