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Judge Rules Nativity Scene Violates Constitution


DOWNEY — A Superior Court judge has ruled that the placement of a Nativity scene near City Hall during the Christmas season violates a provision of the U.S. Constitution that prohibits government endorsement of religion.

The decision reinforces, but does not expand, recent court rulings that found that the display of religious symbols such as creches and menorahs on public property associated with government is unconstitutional, said Carol Sobel, an American Civil Liberties Union lawyer.

The Jan. 4 ruling by Judge Harvey A. Schneider was announced earlier this week by the ACLU, which sued Downey on behalf of three local residents.

"Everyone has freedom of religion but . . . no one has the right to use government property to carry out their religious message," Sobel said.

Sobel said the decision prevents a Nativity scene from being put up on public property anywhere near City Hall.

But Downey City Atty. Peter Thorson disagreed, saying the decision allows a Nativity scene as long as it is part of a larger display of snowmen, reindeer and other secular Christmas decorations. Thorson said the City Council has not decided whether it will appeal the decision.

"I thought we had a strong argument that the city did absolutely nothing to endorse the display," Thorson said.

The Nativity scene has been set up the last several years in a grassy area surrounding the city arch, a historical city monument just north of City Hall. The scene includes a stable with baby Jesus in a manger, Joseph, Mary, the three Wise Men, shepherds and animals.

The Nativity scene is owned and displayed by a group of local residents called the Downey Christmas Assn.

". . . The display of a creche in the Civic Center of the city of Downey 'conveys a message of government endorsement of religion in violation of the (Constitution),' " Schneider wrote in his five-page decision, partly quoting the decision in another case.

"While neither creches nor menorahs are prohibited . . . creches or menorahs that are endorsed by the government are," said Schneider, who visited the Downey Nativity scene last month.

The ACLU sued Downey in December, 1985, after city employees and volunteers put up a creche in front of City Hall.

A judge issued a temporary restraining order, which prompted the volunteers to move the creche to the area near the city arch. The ACLU contended that the new placement still implied government endorsement of a religion, but the organization failed to win a decision until last week.

The ACLU pressed the case anew after the U.S. Supreme Court ruled in July that a Nativity scene in a courthouse in Allegheny, Pa., promoted religious beliefs and was unconstitutional. In addition, the U.S. Court of Appeals for the 2nd District last Dec. 12 deemed unconstitutional a menorah that was placed in a park in front of City Hall in Burlington, Vt.

Schneider's decision relied heavily on both cases.

Thorson, the city attorney, said the Nativity scene was legal because it carried a sign that declared the creche was owned and erected by the private Downey Christmas Assn. Thorson claimed the sign made it apparent that the display was not endorsed by the city.

Thorson also claimed that the area surrounding the arch was a public park and forum for free expression.

But Schneider rejected both contentions. In doing so, he emphasized the fact that the city had placed a decoration with a cross on a utility pole near the Nativity scene.

The judge also noted that Downey designated the area a park only after the lawsuit was filed.

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