A sharply divided federal appeals court Wednesday upheld San Diego's right to permit a private group to display a life-size Nativity scene in a public park during the Christmas season.
In a 2-1 decision, the U.S. 9th Circuit Court of Appeals in San Francisco said the display was legal because it was placed in a section of Balboa Park that is a traditional public forum and because other groups are allowed to use the area while the display is in place.
The disputed display consists of eight scenes, made up of statues of Jesus, Mary, Joseph, shepherds, angels, young children, assorted camels and other animals, painted backdrops and biblical passages in English and Spanish, accompanied by a disclaimer that the city is not sponsoring the display.
"A reasonable observer" could not fairly conclude that by permitting the display San Diego was placing state approval on religious sects or practices or giving preferential treatment to a religious organization, Circuit Judge Diarmuid F. O'Scannlain wrote in the majority opinion, which was joined by Judge Alex Kozinski.
In fact, O'Scannlain said the city's decision to permit the display of the Community Christmas Center Committee was supported by a "legitimate secular purpose . . . the promotion of free expression."
"Religious speakers have the same right of access to public forums as others," O'Scannlain wrote. "Absent some compelling state interest, the city cannot forbid the committee from erecting its display in Balboa Park because of the religious content of the message."
But Circuit Judge Robert Boochever issued a sharp dissent, saying that in light of the "unprecedented religious intensity" of the display and the city's association with it, the display violated the constitutional ban on government endorsing religion.
Boochever said that San Diego waived its normal policy of collecting fees for use of the Balboa Park Organ Pavilion and did not enforce its ban on soliciting donations, thus giving the impression that it was aiding the Community Christmas Center Committee in an impermissible manner.
O'Scannlain said that those points were not critical because there was no evidence that other groups had been barred from soliciting donations and because the city also had waived fees for other groups.
The committee used volunteers to erect and take down the display and the statutes are stored on private property. The group paid San Diego $150 for electrical costs.
Before 1988, San Diego had been an official sponsor of the display, but the city dropped the endorsement that year after the city attorney's office decided it violated the 1st Amendment ban on government sponsorship of religion.
Wednesday's decision upholds an earlier ruling by a federal trial judge in San Diego, stemming from a challenge by Howard Kreisner, an activist atheist.
Since 1971, the Supreme Court has had a three-part test to determine if a government practice touching on religion is permissible under the "Establishment Clause." The practice must have a secular purpose, must not have a primary effect of advancing or inhibiting religion and must not foster "an excessive entanglement with religion."
But the three-part test has left gray areas, according to judges and other constitutional scholars. "The law in this area is very hazy," said Jesse Choper, a constitutional law professor at UC Berkeley's Boalt Hall School of Law.
Judge O'Scannlain lamented in his opinion that no clear general principles had emerged from recent U.S. Supreme Court decisions on the constitutionality of religious holiday displays in public places. Instead, decisions have turned on detailed examinations of the particular circumstances, such as location of the display and the entire setting.
For example, in a 1989 case the Supreme Court ruled that it was unconstitutional for a privately owned creche to be displayed on the grand staircase of the Allegheny County Courthouse in Pittsburgh, Pa. However, the justices permitted another privately sponsored display consisting of a menorah, a Christmas tree and a sign saluting liberty outside a government office building a block away from that courthouse.
O'Scannlain said he saw two significant distinctions between the San Diego case and the Allegheny courthouse case. He said that the courthouse was not considered a public forum and that Balboa Park, although a public place, is not a seat of government.
"The Establishment Clause, as the name suggests, forbids only the establishment of religion, not the mere appearance of doing so," Kozinski wrote in his concurring opinion. "Many government actions are consistent with religiously inspired values and can appear to some as endorsing religion."
Mary Kay Jackson, deputy city attorney for San Diego, said she was delighted by the decision.
John F. Delaney, one of Kreisner's attorneys, said he is disappointed with the decision but sees a silver lining. "As a result of the suit, the city of San Diego has been slowly cleaning up its act," he said.
"For example, last Christmas there was an (American Civil Liberties Union) display on the Bill of Rights that shared the space in the Organ Pavilion" with the Nativity scene, Delaney said. A year earlier, the city had declined to issue a permit to the ACLU, even though it applied for the space five months before the Christmas Tree Committee.
Boochever said the city's response to the ACLU's 1991 application gave the impression that the Organ Pavilion was not truly an open forum.
"There's still no written guidelines on the use of this space," Delaney said. "But the city is slowly coming around to making this a public forum."