‘Grinch’ Lives on in Lexington

Federal Appeals Court Hears Lexington Crèche Case

By Ed Oliver
December 2001

A three-judge federal appeals panel in Boston heard arguments last month in the Lexington Crèche case. The judges said they would issue their decision before the Christmas season begins.

In October, U.S. District Judge Nancy Gertner dismissed a suit filed last year by the Lexington Knights of Columbus seeking to place the nativity scene back on the Battle Green where it has stood at Christmas-time for most of a century. Selectmen banned the crèche last year with a regulation prohibiting unattended structures on the Green.

Attorney Chester Darling, who argued on behalf of the Knights, told the judges that denying a permit to erect the crèche prohibits religious expression. He said town selectmen cannot make a decision about content, but can only regulate time, place and manner. He said although the regulation appears neutral on its face by banning all unattended structures, the record clearly shows the selectmen’s intent was to ban the crèche in order to placate a vocal minority who objected to it. He said that selectmen were applying the regulation selectively in practice.

Judge David Singal asked Darling if selectmen were not justified in their fear that competing structures on the Green would cause clutter if the crèche were allowed.

Darling answered that the selectmen could regulate the time, place and manner of the displays to avoid that problem.

On the opposing side, Jordana Glasgow, from the law firm Palmer and Dodge, drew a strong reaction from a judge as she attempted to explain away the flexible enforcement of the rules by selectmen. For instance, this year selectmen allowed unattended structures such as platform trucks, a podium and bleachers to sit on the Green for days connected to secular events although the rules make no such exceptions.

“I’m gravely troubled by what you call flexibility,” Judge Bruce Selya said to Glasgow. “This is standardless discretion.”

Judge Kermit Lipez remarked, “The regulations specifically say ‘no unattended structures,’ yet there seem to be a lot of unattended structures there for a long time despite the absolute prohibition.”

Glasgow maintained the rules were neutral and applied evenly to everyone. She said selectmen were attempting to preserve the aesthetic and historic qualities of the Battle Green by banning unattended structures.

Darling pointed out that the crèche was already part of the Green’s history since it sat there more than 80 years. He pointed out that even the lower court rejected the notion that the history of the Green was negatively affected by the presence of the crèche.

Atty. Darling told MassNews, “I was pleased with the substantive exchanges made with the judges.” He said he plans to take the case to the U.S. Supreme Court if the judges turn down the appeal.