Lexington Crèche Goes to U.S. Court of Appeals

Lexington Crèche Goes
to U.S. Court of Appeals

January 2001

Atty. Chester Darling filed an appeal last month in the U.S. Court of Appeals in Boston on his motion for an injunction in the Lexington crèche controversy. If approved, it would allow the crèche to be displayed in 2000.

A federal judge in the trial court, Nancy Gertner had refused his request for the emergency injunction. A trial on the main case will be heard by her this year.

Darling was optimistic that he will prevail on the injunction in the appellate court but if not, he says he will take it to the U.S. Supreme Court.

Most lawyers were not surprised that Judge Gertner turned him down because she is known as the most strident and political feminist judge in Boston.

Town’s Action Was Against Religion
Atty. Darling argues that the banning of an unattended structure on the historic Battle G reen, where a crèche has appeared for many years, was done specifically to prohibit the crèche. He says this violates the rights of the citizens to religious expression.

“The Rules and Specifications for regulating the use of the Battle Green, were to resolve the issue of the Knights’ religious display,” Darling says.

He wrote: “During the Selectmen’s meeting of July 24, 2000, Chairman Jeanne K. Krieger stated that the Selectmen had followed through on their intent of not continuing to permit the crèche display by instructing the Town Counsel, on July 10, 2000, to revise and recommend a revised ‘by law’ that would allow the Selectmen to deny the Knights of Columbus a permit to continue placing their temporary religious display on the Battle Green.”

Darling claims that, “The town’s regulations are an odious governmental action that rises to the level of constitutionally impermissible content-based infringement and burden on their freedom of speech and religious exercise.”

He states that the battle green is a public park and has historically been used as a “public forum” by the residents. It is “axiomatic” that the government will defer to speakers as to what they want to say and how they will say it. And religious expression is as protected as secular speech.

He quotes a U.S. Supreme Court case from 1993, which stated, “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.”

According to Atty. Darling, Judge Gertner “totally ignores a record replete with hostility toward the particular religious practice, and the concern of some selectmen to the reactions of some citizens to the public display of an important Christian act of worship in a public forum.”

He said that the judge made an “astounding conclusion” when she wrote that the regulation served a “significant interest of the Town of Lexington – namely, preservation of the historic and aesthetic nature of the Green.” He said that in order to come to this conclusion, she “ignored an eighty-year history of the display of the crèche without incident.”

Darling wrote that the town acted “with the sole purpose of prohibiting religious expression on the Lexington Green.”