Law firm warns city: 'Banning Nativity scene violates 1st Amendment'

The mythical Christmas-hating Grinch apparently is alive and well in Rehoboth Beach, Delaware, where city officials banned a Nativity scene "because of its religious nature."

The display by the Knights of Columbus Star of the Sea Council is being defended by the First Liberty Institute, which charged that the ban violates the First Amendment.

"City officials either have terribly wrong information or such animus toward religion and people of faith that they would rather break the law than allow a Nativity display at Christmas time," said Roger Byron, senior counsel for First Liberty Institute. "It is a blatant violation of the First Amendment to ban religious displays from public property."

The institute explained that for decades, the creche has been a component of the Christmas tradition in Rehoboth Beach.

"Other yearly holiday displays on-site include a Christmas tree, light displays, and a large Santa’s House nearby on the Boardwalk erected, owned and displayed by the local Chamber of Commerce," the institute said. "The local Knights of Columbus have been trying to continue the tradition of the crèche display. But beginning last year, city officials banned the crèche from city property, claiming it cannot be placed on the circle or other public property because it is religious."

The mayor, Paul Kuhns, recently admitted on television the "city policy is not to have religious displays on public property or city property."

The institute's letter said the "blanket ban on religious displays" and "the city's prohibition of KOC's religious Christmas display while allowing a secular Christmas display by another local organization" is a problem.

In fact, the letter said, it's "textbook viewpoint discrimination."

Byron said, "We hope the city officials are simply misinformed about the law."

The institute letter to Kuhns and city manager Sharon Lynn urges them to "follow the law and allow the Knights and the people of this town to continue the beloved tradition of a crèche as one of the holiday displays at the Bandstand circle.”

The letter to the town explained: "It is well established that the speech protections of the First Amendment extend to displays like the creche. It is equally well established that 'private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression."

It continued: "It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Viewpoint discrimination, an 'egregious form of content discrimination,' 'targets … particular views taken by speakers.'"

It also is not a problem whether the exhibit is considered "private speech" or "government speech," the letter said.

"The Supreme Court has made it crystal clear that a government holiday display consisting of both secular and religious items is in keeping with constitutional requirements," the letter said.

The Knights of Columbus asks the city to continue the tradition of "including a creche as part of the holiday displays."

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