Lexington Crèche Is ‘Targeted’ for Banishment, Court is Told

Selectmen in Lexington passed new rules last July prohibiting all unattended structures on the Battlefield Green for over eight hours, thus banning the annual Christmas crèche. However, this platform truck, two sets of bleachers and a podium sat unattended on the Lexington Battle Green for up to five days before Patriots Day this spring. The town’s legal counsel, William Lahey, said the unattended structures were merely “accessories” related to an authorized event. But Atty. Chester Darling said, “Free speech for me, but not for thee,” in response to the hypocrisy. Atty. Darling’s lawsuit against the town is still being litigated in a U.S. court in Boston.

Attorney Chester Darling argued last month in Boston’s U.S. District Court that a town regulation barring the annual nativity scene from the Lexington Battle Green is a deliberate suppression of religious expression.

“I am saying that the crèche is a religious exercise. The crèche was targeted for banishment,” Darling told Magistrate Judge Judith Gail Dein.

Last summer, in an effort to ban the crèche from the Battle Green, town selectmen amended the regulations to not allow permits for “any unattended structure” on the Green. They also removed the words, “displays of a religious nature,” from the list of permitted activities.

Darling cited a 1993 Supreme Court case which ruled, “If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral; it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.”

Judge Dein asked the lawyer representing the town of Lexington, Jordana Glasgow of Palmer and Dodge, if she denies that the crèche was the motivating factor in the review of the regulations by selectmen. “That was the context, certainly,” answered Glasgow, but she added there were other factors such as “historic and aesthetic preservation” of the Battle Green.

Darling addressed the issue of aesthetics and historic preservation by pointing out that the town of Lexington wasn’t concerned about two sets of bleachers, a podium and a platform truck which sat for several days on the Battle Green in April in connection with this year’s Patriots Day activities.

Darling stated in his brief that the new regulations are purported to be a content neutral prohibition of all unattended structures on the Battle Green. Yet, he continued:

“Some unattended structures are permitted on the Battle Green apparently without damaging the Green’s historic and aesthetic qualities. Flat bed trucks can be driven onto the Battle Green and left there for days without damaging its historic and aesthetic qualities. Bleachers and podiums can be constructed on the Battle Green and left unattended for four days.

“Yet, we are told that the crèche would damage the Battle Green’s historic nature, despite the fact that the crèche has been an annual tradition of the Battle Green for the better part of a century.

“This is despite a complete absence of even a single complaint about the crèche having a negative effect on the aesthetic beauty of the Battle Green.”

One factor in the banning was when opponents of the crèche threatened to erect a pyramid to the sun god Ra and other provocative structures on the green if the nativity scene were allowed to remain. They said the presence of the crèche offended them.

Judge Dein asked Darling if the threat of other competing structures on the Green was a legitimate concern of the Board if the crèche were allowed to stay.

Darling answered that there were not any serious alternative structures offered. But Judge Dein disagreed, saying some of them were serious.

Darling answered that if the town pushed that issue in court, then banning the crèche on that basis is a “heckler’s veto, which is not permitted in our system.” He said making decisions based on pretextual threats about pyramids is no way to run the country.

The judge asked Darling what the Board could lawfully do to limit the crèche if they remove the ban against it.

Darling responded that they could restrict the time, date and place but could not get into content. “The selectmen do not have the ability to weigh the value of speech,” said Darling.

Judge Dein asked Atty. Glasgow if bleachers are any less intrusive on the Green than the crèche.

Glasgow said it is completely different because the crèche is there for weeks. She said you couldn’t equate the annual Patriots Day celebration with “a proliferation of private displays.”

Glasgow responded that the bleachers and other equipment which sat for days on the Battle Green were accessories to a permitted event and fully consistent with the letter and spirit of the regulations.

Glasgow commented that the plaintiffs have brought nothing new since the last time they were in court before Judge Gertner. She said there was no reason to deviate from the previous court ruling, which said there is no evidence of animosity to the crèche.

Darling’s assistant, Atty. Michael Williams, reminded the judge that they were not there to review a preliminary ruling about a request for a preliminary injunction, which would have allowed the crèche to be erected while the matter was being decided by the court. This preliminary ruling did not decide the merits of the case, he pointed out.

Williams said Lexington did not issue a permit this year for the Patriots Day celebration. “They are allowing events without a permit and they are allowing unattended structures,” he said. “Selectmen are sponsoring certain messages but not others.”

He said that the town mentions all sorts of flexibility that the rules supposedly contain. He pointed out, however, that the regulations plainly prohibit without exception “Placement on the Battle Green of any unattended structures.” Another section says permitted events are “not to exceed eight hours in duration.”

Last year, Darling filed a lawsuit on behalf of the local chapter of the Knights of Columbus in U.S. District Court seeking to lift the ban after the group was denied a permit to erect the crèche. The Knights also sought the preliminary injunction in order to erect the crèche before Christmas. Judge Nancy Gertner denied the request for an injunction and the U.S. Court of Appeals allowed her ruling to stand. The appeals court recommended, however, that the legal process be completed in advance of the 2001 Christmas season.

Magistrate Judge Dein will rule on the facts of the case and recommend a ruling as to the legal questions. Her recommended ruling will be sent to Judge Gertner, who will make the actual ruling.

Courtroom observers speculate that it may take some time to get that ruling because Judge Gertner will be on vacation for the month of August.

Attorneys at Palmer and Dodge declined a request by the plaintiffs to treat the Magistrate’s ruling as the final judgment so they can get to the appeals court quicker if necessary.

Outside the courtroom, Chester Darling told Massachusetts News, “It’s ironic that in the very place where the fight for religious freedom began, a powerful few have extinguished religious expression on the Battle Green.”