Santa Monica Nativity Scenes Committee v. City of Santa Monica
784 F.3d 1286
9th Cir.2015Background
- Santa Monica historically allowed a nonprofit (the Committee) to erect large unattended nativity dioramas annually in Palisades Park; the City generally banned unattended structures in parks but carved a 2003 "Winter Display" exception for December in Palisades Park with space allocated first-come, first-served.
- Demand for Winter Display space surged in 2011 when several atheists applied for many spots (and a lottery system allocated most spots to them), leaving the Committee far less space than customary.
- City Attorney recommended repealing the Winter Display exception because continued operation posed administrative burdens, threatened park aesthetics/views, and risked escalating controversy; City Council unanimously adopted Ordinance 2401 (repeal) in 2012, banning all unattended displays in parks.
- The Committee sued, alleging (1) the repeal was an unconstitutional heckler’s veto / content-based restriction violating the Free Speech Clause, and (2) an Establishment Clause violation by conveying hostility to Christianity; district court denied preliminary relief and dismissed under Rule 12(b)(6); dismissal with prejudice was appealed.
- The Ninth Circuit reviewed de novo, treating Palisades Park as a traditional public forum and examined content neutrality, time/place/manner analysis, and Lemon factors for the Establishment Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ordinance 2401 is a content-based "heckler's veto" | Committee: City repealed the exception in response to atheist opposition and controversy, effectively silencing religious speech (content-based) | City: Repeal is a facially neutral, generally applicable rule addressing administrative/aesthetic burdens, not targeted suppression | Held: Not a heckler's veto; ordinance is content-neutral (applies to all unattended displays) |
| If content-neutral, whether the ordinance is a valid time, place, and manner restriction | Committee: Repeal burdens more speech than necessary and denies Committee its preferred medium (large unattended displays); alternatives are inadequate (audience, cost) | City: Ordinance serves significant interests (aesthetics, conserving staff resources), is narrowly tailored and leaves ample alternatives (attended displays, private property, leafleting, speech) | Held: Valid time, place, manner regulation—satisfies significant interest, narrow tailoring, and leaves ample alternatives |
| Whether the ordinance had an impermissible secular purpose (Establishment Clause, Lemon prong 1) | Committee: Repeal motivated by hostility to Christianity / disfavor of nativity scenes | City: Repeal motivated by secular goals (park aesthetics, resource conservation, neutral treatment) | Held: Secular purpose plausible; purpose prong satisfied |
| Whether the ordinance’s principal effect was to inhibit religion (Establishment Clause, Lemon prong 2) | Committee: Repeal’s effect disparages Christian religion by removing nativity display tradition | City: Ordinance neutral and long-standing accommodation history shows no primary effect of disapproval | Held: No plausible Establishment Clause violation; primary effect not to inhibit religion |
Key Cases Cited
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (tripartite test for Establishment Clause: purpose, effect, entanglement)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standard for content-neutral time, place, and manner restrictions)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (forum analysis and levels of scrutiny for public fora)
- Boos v. Barry, 485 U.S. 312 (1988) (government may not justify regulation by reference to listeners' reaction to speech)
- Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (discussion of unattended private displays in public fora)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (government may regulate expressive conduct in parks for aesthetic and preservation reasons)
- Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) (regulation to prevent visual clutter permissible; alternatives still available)
- Frisby v. Schultz, 487 U.S. 474 (1988) (narrow tailoring in public forum regulations)
- American Jewish Congress v. City of Beverly Hills, 90 F.3d 379 (9th Cir. 1996) (facially neutral ban on unattended displays can be constitutional; caution against arbitrary exceptions)
- Knights of Columbus, Council #94 v. Town of Lexington, 272 F.3d 25 (1st Cir. 2001) (upholding ban on unattended structures enacted to preserve public space aesthetics)