Today Liberty Counsel filed suit against two Florida cities after both banned a private display of a nativity scene on public property. The lawsuit was filed 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.
Liberty Counsel's lawsuit was filed in federal court. The suit argues that the exclusion of the privately sponsored nativity scene from an open forum constitutes viewpoint discrimination in violation of the First Amendment. The suit requests the court to enter a temporary restraining order requiring the towns to permit the private display.
The Supreme Court has ruled that even government-sponsored displays of a nativity scene alongside a Christmas tree, or a Menorah alongside a Christmas tree, are constitutional. The constitutional right to display privately sponsored religious Christmas displays in an open forum is even clearer. Excluding them is unconstitutional.
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. While the towns justify their discrimination by contending that the Menorah is secular, the Supreme Court has recognized the Menorah as a religious symbol. By banning the nativity scene while permitting the Menorah, the towns have engaged in the worst kind of constitutional violation - preferring one religion over another. Sectarian preference is repugnant to the Constitution.
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.