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to revert back to its original policy of banning unattended displays and adopted Ordinance 2401 (“Ordinance”), which repealed the Winter Display exception.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.”

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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