Ruling Guides Cities on How to Regulate Holiday Displays

A high-profile case that provides guidance on how local governments might approach holiday display regulations without violating constitutional rights was decided last week by a federal appellate court. The City of Santa Monica did not violate the First Amendment by ending all unattended displays in a city-owned park, the U.S. Ninth Circuit Court of Appeals affirmed. The ruling came in an ongoing dispute over ”Winter Displays”, including a nativity scene, in Palisades Park. The court held that the City’s repeal action equally applied to all displays and, thus, was a content neutral time, place and manner restriction allowed by the First Amendment.

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, the City opted to repeal an exemption it had created to allow “Winter Displays” in Palisades Park. A nativity scene was first erected in the park in 1955. In 1994, the City prohibited the construction of unattended displays in all parks, allowing the nativity scene to continue its annual tradition by enacting an exception to the general prohibition for “Winter Displays” during the month of December and only in Palisades Park. Under the exception, all members of the community were allowed to put up displays, and display space was to be allocated on a first come, first-served basis. In 2011, applications for the space surged as a number of atheists applied for space. The City used a lottery system to allocate available space that year, but — faced with the prospect of a continued flood of applications and tensions between the Committee and the other applicants — the City elected to repeal the exception and keep the park free of all unattended displays. The Committee then sued, alleging that the repeal violated both their free speech rights and the Establishment Clause by effectively communicating an anti-Christian message.

The Ninth Circuit disagreed, holding that the repeal was generally applicable, that it did not silence speech because of its content and that it did not communicate a message that has a tendency to establish a religion. Because the City had a neutral desire to preserve the aesthetic qualities of the park and to avoid the time-consuming and costly process of operating the lottery, the repeal was not aimed at silencing particular speech, nor at advocating for a viewpoint on the question of religion or religious holiday displays. Because the repeal was content-neutral, it only needed to be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication. The City made an effort to accommodate all applicants for space, but came to the conclusion that the administrative problems and strife outweighed the benefits of continuing the exception, a decision the court found was both neutral and narrowly tailored to serve significant governmental interests.

The court quickly dispensed with the Establishment Clause challenge by pointing out that the repeal had 1.) a secular legislative purpose, 2.) that its principal or primary effect was not to enhance or inhibit religion, and that 3.) it did not foster excessive governmental entanglement with religion. As a result, the repeal did not violate the Establishment Clause.

This case affirms the authority of cities to remove exceptions they have created for religious displays, so long as that removal is done in a content-neutral matter. The City cannot determine which displays it will allow on public property based on the content, religious or otherwise, of those displays. Rather, all localities should ensure their regulations are content neutral, narrowly tailored to advance the governmental interest at play, and leave open alternative channels of communication. Local governments should also avoid taking actions that have the apparent effect of establishing a religion (or lack thereof) by ensuring their policies have a secular legislative purpose, that they do not principally aim to advance or inhibit religion, and that they do not require the government to become excessively entangled with religion. By focusing on advancing the city’s interests through neutral policies that approach questions of religion from a level playing field, local governments can avoid First Amendment challenges and create lasting policies to address these issues.