While the holiday season is still several months away, nativity scenes are back in the news.  What nativity scene discussion would be complete without adorable baby, fanged Jesus?  On New Year’s Eve 2014, we reported about the zombie nativity scene created by haunted house worker Jasen Dixon in which a crowned wise man presents baby, fanged Jesus with a skull as undead Mary and Joseph look on surrounded by an eight foot structure with roof, hay, lights, and what appears to be the skeleton of a dog (photo of baby, fanged Jesus available here).  Although the zombie nativity scene was on private property, municipalities concerned about religious displays on municipal property may wish to take note of a recent Ninth Circuit decision – Santa Monica Nativity Scenes v. City of Santa Monica (9th Cir. 2015) – in which the court upheld an ordinance banning all unattended displays enacted in response to a surge in applications for displays during the holiday season.

In 1955, City residents erected large displays in Palisades Park depicting Christmas scenes.  The non-profit Santa Monica Nativity Scenes Committee (“Committee”) was organized to manage the displays in Palisades Park.  In 1994, the City banned all unattended displays in parks, but in 2003 changed course to allow a “Winter Display” exception  during the month of December and only in Palisades Park on a first-come, first-served basis.  While the Winter Display exception went without incident for its first few years, applications by those who oppose traditional religious displays began to surge.  In 2010, one Atheist, Damon Vix erected a display consisting of a chain-link fence that surrounded a signboard quoting Thomas Jefferson: “Religions are all alike – founded upon fables and mythologies.”

Fearful of a further surge in holiday display applications, the City created a lottery system to allocate space fairly and divided the display space in the Park into 21 “spots,” allowing applicants to request up to 9 spots each.  In 2011, the City received 13 applications requesting a total of 109 spots.  On June 26, 2012, the City decided to revert back to its original policy of banning unattended displays and adopted Ordinance 2401 (“Ordinance”), which repealed the Winter Display exception.  The Ordinance was enacted on the advice of the City’s attorney to “serve the purpose[s] of resolving the controversy, eliminating legal risks, conserving the staff time and resources necessary to operate a constitutionally valid regulatory system, conforming usage of Palisades Park to the long standing, City-wide standard which prohibits unattended displays in parks, and protecting the views of the park and ocean.”

The Committee sued the City, alleging violations of the First Amendment’s Free Speech and Establishment Clauses.  The District Court found in favor of the City and the Ninth Circuit affirmed.

First, the Ninth Circuit rejected the Committee’s argument that the Ordinance violated the Free Speech Clause.  The court was unpersuaded by the Committee’s contention that the Ordinance should be considered content based under the “heckler’s-veto” doctrine, which provides that a regulation of speech is content based when “listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech in response to listeners’ objection.”  Here, the court noted that the Ordinance is intended to balance “competing speech rights” rather than to “suppress[] … a [particular] message because of the audience’s reaction to it.”

Next, the court found that the Ordinance was content neutral because it “effectively bans all unattended displays in Palisades Park … [and] does not discriminate between particular displays based on their content.”  The Ordinance was found to be narrowly tailored to serve significant governmental interests (preserving aesthetic qualities, preventing obstruction of patrons’ views of the ocean, and conserving City resources) while leaving open ample alternative channels for communication (erecting nativity scenes on private property, one-day attended displays, leafleting, preaching, holding signs, and caroling).

Finally, the Ninth Circuit dismissed the Establishment Clause claim.  A regulation violates the Establishment Clause if (1) it lacks a “secular legislative purpose;” (2) its primary effect is to advance or inhibit religion; or (3) it fosters excessive government entanglement with religion.  Under the first prong, the City’s significant governmental interests noted above were sufficient legislative interests.  As for the second prong, the court noted that the history it recounted “shows that, far from disapproving the nativity scenes, the City welcomed and accommodated the City’s displays for over fifty years and repealed the Winter Display exception only when it was convinced that no other course of action made sense.”