One day after publishing my views on the Santa Monica Nativity scene controversy in The Washington Times, the Los Angeles Times again rejected a separate op-ed piece I had offered it for publication.
I re-submitted the piece because of a personal attack on me in the Letters section of today's Times in which the letter-writer singled me out for attack:
"Attorney William J. Becker Jr.'s dissatisfaction with the relocation of the Santa Monica Nativity scene to easily accessible private land not far from the disputed location proves that his interest is not in ensuring that people will be able to view it if they choose, but in forcing his beliefs on others.
"Christmas is a strange time of year; otherwise reasonable people become bullies who believe everyone should enthusiastically celebrate their holiday."
Based on this attack on me, I thought it would be fair for the Times to run my piece, which presents a reasoned response to the constitutional ignorance of the author of the Times letter. So I offered it to them one more time. But the Times explained to me in an e-mail, they just don't understand it:
"We turned down your submission because we felt that your argument was hard to follow, and we already had a piece on the topic...."
I publish it now. Please leave a comment and tell me whether you agree with the Times. Is it hard to follow?
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A Christmas Constitutional Primer
William J. Becker, Jr., Esq.
For the Los Angeles Times
A federal judge last week ended a longstanding right of atheist groups to erect displays each December in Santa Monica's Palisades Park critical of religion, religious expression within a public forum and the religious significance of Christmas. The atheist activists have located private property, where they will continue their tradition of heaping scorn on the religious faithful. "This is a violation of our First Amendment rights," said the group's leader. "A public park is a traditional public forum. Private property is no substitute for the right of all citizens to address matters of political concern in such a forum."
While it is a fact that a judge's order last week has had the effect of depriving atheist activists of their First Amendment free speech rights in Palisades Park, their outcry is pure fiction. Indeed, their stated goal was to eliminate the right to set up displays in the park—for sponsors of Nativity displays that is. No matter their expressive rights would be extinguished in kind. That was a hill they were willing to die on. What the group's leader actually told the New York Times was, if they were to "put up as many messages as the Christians had, there would be a backlash," and "he predicted that the city would cancel the December tradition altogether." (NY Times 12/11/2011).
When U.S. District Judge Audrey B. Collins tossed out my client's lawsuit, Santa Monica Nativity Scenes Committee vs. City of Santa Monica, Santa Monica's ban on "unattended private displays" in Palisades Park that went into effect this year for the first time in more than half a century was upheld as a valid restriction on private speech within a traditional public forum, a term applied to public parks, where courts have upheld "from ancient times" the public's right to engage in all manner of speech activity. That means that Santa Monica did not merely suppress the protected speech rights of Christians, but of atheists as well.
Writing to this newspaper, one supporter of the judge's decision expressed the sentiment that Christians alone do not enjoy the speech guarantees of the First Amendment: " [I]f the proponents of Nativity displays insist that they be on public property, then it is obvious that the goal is to promote Christianity, which is an unconstitutional use of public land." Such a gross misunderstanding of the Constitution cannot lightly be ignored.
The U.S Supreme Court has made it abundantly clear that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." Capitol Square Review & Advisory Bd. v. Pinette (1995). As such, '[r]eligious speakers have the same right of access to public forums as others."
Widmar v. Vincent (1981).
This logic, along with the state of the law, appears lost on too many people. And of course Christians can try to sell their message on private property; everyone enjoys that right. But the availability of private property is no substitute for the abridgement of a constitutionally protected right to express one's views in a traditional public forum.
Not only do Christians enjoy the right to promote their faith in a public park, their Christmas traditions within a public setting are constitutionally protected.
In Van Orden v. Perry, a 2005 case, the high court stated resolutely that "we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion." Indeed:
"When the state … cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups…. [W]e find 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."
The message the activists succeeded in robbing from the citizens of Santa Monica is one Christians have told and retold for thousands of years. There were shepherds abiding in a field, keeping watch over their flock by night. And an angel of the Lord came to them, bringing "good tidings of great joy, which shall be to all people," praising God and wishing peace on earth and good will toward men.
For the first time in 59 years, this message will not be told through the medium of what some have called a "tacky" display of store shop mannequins. But the message of peace and good will those tacky displays were designed to share with everyone will not be so easily erased from the hearts of those who remember the true meaning of Christmas or a time when the citizens of Santa Monica could look upon them with charitable souls rather than with bitter feelings of religious intolerance and erroneous constitutional assumptions.
*William J. Becker, Jr., of Freedom X in Los Angeles, California, represents the Plaintiff in Santa Monica Nativity Scenes Committee vs. City of Santa Monica, a case he is about to appeal to the 9th Circuit.