Judge Gertner Dismisses Lexington Crèche Case ... As Expected

New Permit Application Already Entered for This Year

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By Ed Oliver
November 2001

U.S. District Judge Nancy Gertner last month dismissed a suit filed 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.

"This decision comes as no surprise," Attorney Chester Darling told MassNews. "We are anxious to make our argument in the Circuit Court of Appeals in time for Christmas."

With help from Atty. Darling, The Knights of Columbus have already applied for a permit to erect the crèche this year by using the selectmen's own "accessory" excuse.

To commemorate the "Advent and Epiphany of the Birth of Jesus Christ," the Knights have applied for a permit to hold daily eight-hour prayer vigils on the Green starting at 3 p.m. during the time period of December 2, 2001 until January 6, 2002.

As a visual accessory to the event, the crèche will be erected and allowed to stay up between vigils because it needs to be set up in advance of the daily vigil. A reasonable set-up and takedown time is around fifteen hours according to the Knights' previous experience.

"We believe this request is within the bounds of other requests granted by this board," says the Knights' permit application. They cite Selectman Peter Enrich's own words from a court affidavit, which states, "accessory structures can be installed some reasonable time before, and removed some reasonable time after, the actual event for which they are used."

The Patriot's Day structures referred to by Enrich were installed days before the event and removed days afterward.

The Knights have also applied for a traditional permit to erect the crche, but have asked selectmen to hold off on their decision while the issue is under litigation.

Many residents staged weekly protests at the Green last year in response to the crche banning. The protests have started again this year and are held every Wednesday from 4 to 6 p.m. through December 19.

Appeal to U.S. Court of Appeals

The crèche was banned from the Green in the summer of 2000, after a vocal group of residents complained that it was divisive. The group also threatened that they would seek permits to erect competing structures such as a pyramid to the sun god Ra.

Selectmen then banned the crèche by prohibiting "unattended structures" from sitting on the Green for more than 8 hours. Still, selectmen arbitrarily allowed unattended structures such as bleachers, a platform truck and podium to sit unattended on the Green for days in connection with the Patriot's Day activities, although the rules do not specify any exceptions.

Selectmen justified the violation by calling the unattended structures "accessories" to a planned event.

Selectman Peter Enrich attempted to justify the double standard in a court brief by saying "unattended structures do not prohibit all structures. By prohibiting only unattended structures, the rules implicitly allow 'attended' structures, which are placed on the green in connection with, and as an accessory to, a specific permitted event."

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