May 16, 2012

If the Santa Monica City Council adopts a holiday display policy recommended by a Religious Right legal group, lawsuits are certain to follow, according to Americans United for Separation of Church and State said today. 

In a letter today, Americans United charged that Liberty Counsel, a legal group affiliated with the late TV preacher Jerry Falwell’s Liberty University, is giving the city bad advice. On May 8, Liberty Counsel urged the city to drop its policy of using a lottery to choose displays for a public space in favor of allowing only displays that are “related to a December holiday” or choosing exhibits on a case-by-case basis.

These approaches, said Americans United, are intended to “pave the way for religious displays while screening out non-religious ones.” Such preferential treatment, the Washington, D.C.-based watchdog group said, “grossly misrepresents” the requirements of constitutional law.

“The city council can’t favor religious displays over non-religious displays,” said the Rev. Barry W. Lynn, Americans United executive director. “If the city does what Liberty Counsel wants, a lawsuit is almost a certainty.”

For a number of years, Nativity scenes celebrating the birth of Jesus were displayed at Santa Monica’s Palisades Park around Christmas. When local residents objected to this apparent preference for one faith, the city set up a lottery system that gives all groups a chance at display spaces.

Atheist groups won many of the spaces last year, and now Christian groups are agitating for a new city policy that limits displays and gives religious organizations more likelihood of dominating the park.

Americans United’s letter, written by AU Legal Director Ayesha N. Khan and AU Staff Attorney Ian Smith, noted that Liberty Counsel failed to give the city council a full description of its activities.

In its advice to the city, Liberty Counsel described itself in secular terms as “a non-profit litigation, education and policy organization” specializing in “constitutional litigation, particularly free speech, religious freedom and church state matters.” In reality, AU said, Liberty is a fundamentalist Christian advocacy organization that mentions Christian beliefs in its doctrinal statement. 

Americans United advised the city council to keep its current policy, which creates a public forum allowing for robust private speech on a free and equal basis, as required by the Constitution. In the alternative, the city could close the forum altogether.