After Liberty Counsel filed a federal lawsuit against two Florida cities over a banned private display of a nativity scene on public property, this afternoon both cities agreed to permit the display. A hearing in federal court was scheduled for 10:30 tomorrow on an emergency basis to hear arguments on the suit. That hearing will now be canceled. The nativity will now be displayed from December 12 to December 31, 2005. The lawsuit was filed by Liberty Counsel on behalf of Ken Koenig against Neptune Beach and Atlantic Beach, situated near Jacksonville.
At the point where the towns of Neptune Beach and Atlantic Beach join each other is a shared Town Center Park ("Park"). Both towns exercise joint control over the Park. In the Park is a forum that contains a 25-foot-tall Christmas tree that was lit on December 3 during a "Tree Lighting and Holiday Celebration." Both towns have approved an application by Cahabad@the Beaches to erect a large Menorah in the park.
When Mr. Koenig requested to display a private nativity scene, measuring a mere 40 inches tall, his request was denied by both towns. The towns have taken the position that a Christmas tree and a Menorah are secular symbols while the nativity scene is religious, and both towns argue that religious symbols are not a permitted display of the holiday season.
Prior to filing suit, Atlantic Beach denied Mr. Koenig's application in writing. Neptune Beach first said that permission from both cities was required. Then legal representatives for both cities were quoted in the media that both cities denied the request. A letter from Neptune Beach's City Attorney was then sent to Mr. Koenig confirming the denial. After the suit was filed December 6, Tuesday, the court set an emergency hearing for tomorrow. Within the past hour both cities have now reversed their positions and will now permit the nativity scene.
To exclude a private nativity scene from an open forum where a Christmas tree and a Menorah are displayed is a clear violation of the First Amendment. Excluding the nativity scene from a forum that includes a Christmas tree and a Menorah constitutes classic viewpoint-based discrimination, which the Constitution forbids. We are pleased that the nativity scene will now be displayed. Celebrating Christmas is constitutional.
Liberty Counsel launched its Friend or Foe Christmas Campaign to first educate that Christmas is constitutional, but to litigate when governments censor Christmas and blatantly violate the Constitution. Liberty Counsel has posted a legal memo at LC.org which sets forth the law regarding Christmas.