Lexington Awaits Judge's
Decision Over Crèche Controversy
Old deed shows Battle Green does not belong to town

By Ed Oliver
November 30, 2000

A federal judge in Boston heard arguments yesterday concerning the Lexington crèche controversy, but did not issue an immediate decision.

The plaintiff’s attorney, Chester Darling, said he expects the ruling to be issued within the next few days.

Although the arguments focused on First Amendment issues, an interesting last-minute development showed that the battle green does not belong to the town. This was disclosed by attorney David Walsh of Lexington, who is also a Knights of Columbus member. He presented U.S. District Judge Nancy Gertner with copies of two deeds from 1711 he located which show the property which is now the battle green was titled to the local inhabitants rather than to the town itself. He said he hasn’t found any evidence that the town ever received title to the property.

Walsh said he needs to research further, but he believes the selectmen may not legally be able to regulate the green. He told Massachusetts News the property went unregulated for over 250 years and did fine, “Until suddenly someone felt the need to regulate picnics and other activities on the green.”

The Knights of Columbus are seeking a temporary injunction which would allow the traditional nativity scene to be displayed on the historic battle green this year, as it has been for most of the last century. Last July, town selectmen passed a new regulation governing “unattended structures,” which could no longer be left standing past eight hours on the green, effectively banning the crèche

The Knights, who have maintained the crèche in recent decades, argued that the new regulation was passed to specifically prohibit the crèche, thereby infringing on their rights of religious expression.

Lawyers for the town argued that the rule change affects all diplays and viewpoints on the green and is not aimed specifically at the crèche.

Attorney Darling however, said he has tapes of the public meetings leading up to the rule change which clearly demonstrate the selectmen’s motivation.

Darling told Massachusetts News that the town used the “Heckler’s veto” to justify the ban. He explained the “Heckler’s veto” is “a small group of people in town who are offended by a majority religious symbol.”

Darling said selectmen in the tapes used words to describe the crèche such as, “painful,” “disenfranchising,” and “alienating”.