Lexington Crèche Goes to Federal Court
Atty. Chester Darling files suit

November 15, 2000
(revised for December 2000 print edition)

Atty. Chester Darling filed suit last month in U.S. District Court in Boston against the town of Lexington in order to obtain a permit to erect a crèche on the Battle Green in time for Christmas.

Plaintiffs are the Knights of Columbus, which has been responsible for the Manger scene since 1973, and its leader, Michael J. O'Sullivan of Lexington.

The suit alleges that the selectmen changed their rules about the use of the Green "specifically to remove the crèche from the Battle Green during the Christmas Season."

Darling claims that this violates both the First Amendment of the Constitution and Articles 2, 3, and 16 of the Massachusetts Constitution.

In addition to being granted a permit for the display, the suit also requests damages and attorney fees.

Atty. Darling had earlier suggested to the selectmen at a public meeting that they should be mindful of litigation that could be ahead and reconsider their rejection of the application.

"I'm proposing that you go ahead and vote on our application and approve it, and we can enter into a discussion and exchange. I'll meet with your counsel and explain to them in detail why the board's position would not prevail in court," said Darling. He emphasized that he was very confident about prevailing in either federal or state court, based on the actions taken by the board in revising its rules and regulations impacting the crèche.

Selectman Peter Enrich answered that he wasn't interested in reviewing the regulations and the board wasn't interested in being threatened with litigation. He asked Darling and his clients if they would be interested in submitting a new application for one day that would comply with regulations.

"I'm not threatening litigation. I'm announcing that there will be litigation if we don't get the permit approved," Darling responded. "For goodness sakes, for this board to suggest that it has the authority to reduce the time of the advent of Jesus Christ and the epiphany and to reduce it to one day. I'm absolutely astonished that a legislative body..."

Enrich interrupted by denying he was attempting to dictate the length of celebrations and lectured about not putting words in one another's mouth.

Darling responded by saying the board made a content-based exclusion of religious speech in a traditional public forum.

When Enrich asked again if the Knights of Columbus would consider resubmitting a request for a permit that complies with the eight-hour restriction, Darling answered to applause, "Sincerely, without being a wise guy, I don't think that question is worthy of an answer."

Approximately 80 people waited at the meeting for two hours because the selectmen scheduled this discussion for the end of their session.

Later in the exchange, Darling said that the Battle Green is a "focal point" that has traditionally been used for spiritual and community activity for many years and is probably the most important public forum in the country.

"I simply don't understand. This board is charged with heavy responsibility for stewardship of the Battle Green and it represents so many things to everyone across our great country.

"Men fought and died there for the freedom to speak and the freedom to practice their religion, as enumerated ultimately in the articles of our Constitution. For any board, including this one, to restrict religious speech, one of the fundamental freedoms these people fought for, is unconscionable."

On October 20, The Knights of Columbus Council No. 94 filed the request for a permit seeking to place a Nativity Scene on the green to celebrate the "Advent and Epiphany of the birth of Jesus Christ, from December 3, 2000, to January 6, 2001."

Banned Last July
Last July, selectmen effectively banned the crèche by passing a regulation prohibiting  "unattended structures" for more than eight hours on the Battle Green. The decision came after opponents of the crèche began applying for permits to allow a pyramid to the "Sun God Ra," as well as permits for witchcraft displays and a billboard, to be erected on the green.

A leader of that movement, David Kaufman, warned the board last night that he will continue to seek approval for his pyramid, witchcraft and billboard permits if they decide to permit the crèche. He also warned that the ACLU was ready to step in to assist him. Later, Kaufman clarified for Massachusetts News that the ACLU was only committed to assist him with his permit request to place a billboard on the Battle Green.

Many residents who are upset over the banning of the crèche have staged weekly protests on the green since the beginning of October, and will do so from 4 to 6 p.m. every Wednesday through December.

Full text of the complaint by citizens in favor of crèche.