Beach town threatened with lawsuit for banning nativity display from boardwalk

A nativity scene that once stood in Rehoboth Beach, Delaware.
A nativity scene that once stood in Rehoboth Beach, Delaware. | Denise Boswell

A nonprofit legal group is accusing a Delaware beach municipality of violating the First Amendment by banning a Catholic church’s nativity display from the bandstand circle at its town boardwalk. 

The First Liberty Institute, a national legal group that defends First Amendment rights, sent a demand letter to leaders in the town of Rehoboth Beach on Thursday regarding the request by Saint Edmond Church and a local chapter of the Catholic fraternal organization Knights of Columbus. 

According to the letter, a nativity scene had been part of the Christmas holiday tradition at the Bandstand circle in Rehoboth Beach for decades until 2018 when the city ordered that the crèche be removed on grounds that a religious display could not be located on public property. 

The decision was not a popular one with residents. In October 2019, the church received a letter from the city manager explaining that the city met with the local chamber of commerce and arranged for the nativity scene to be placed on property leased by the chamber about a half-mile down the road from Bandstand circle. 

But the church contends that the new location is completely removed from the site of the rest of the town’s Christmas traditions located in or around Bandstand circle. 

On Nov. 18, Mayor Paul Kuhns said during a television interview that the “city policy is not to have religious displays on public property or city property.”

In late November, the Knights of Columbus emailed the city manager to ask if the nativity could be set up on a grassy area on the circle or on the boardwalk near the circle, similar to what the chamber of commerce does with its “Santa’s House.” However, those requests were also rejected.

“The Boardwalk is exceptionally large and wide, and the crèche is decidedly smaller than the Santa’s House,” the First Liberty Institute letter authored by senior counsel Roger Byron reads. 

The attorney argued in his letter that viewpoint discrimination is prohibited by the First Amendment to the U.S. Constitution. 

“It is well established that the speech protections of the First Amendment extend to displays like the crèche,” he wrote. “

“Even without a blanket ban on religious displays, the City’s prohibition of KOC’s religious Christmas display while allowing a secular Christmas display by another local organization is itself textbook viewpoint discrimination.”

Byron further added that “viewpoint discrimination is not justified by fear of an Establishment Clause violation.”

“The City has no grounds for claiming its unlawful policy and actions are justified by Establishment Clause concerns,” he wrote. “The U.S. Supreme Court never has found that fear of an Establishment Clause violation justifies viewpoint discrimination. Instead, it has consistently determined such viewpoint discrimination unnecessary and unlawful.”

Additionally, Byron argued that government targeting of religion violates the Free Exercise Clause. The Knights of Columbus feel that the displaying of the nativity scene is a “religious duty” to “reach the most people with the message that Christmas commemorates the birth of Jesus Christ.”

“The City’s prohibition of the crèche has not merely burdened but utterly prevented this particular religious exercise, and the City repeatedly has admitted its prohibition is because of the crèche’s religious nature,” Byron wrote. 

In order to avoid litigation, Byron’s letter demands that the town allow the nativity scene to be placed at the Bandstand circle or immediately adjacent to it on “equal terms and with equal visibility provided the Chamber of Commerce for its holiday display.”

Byron stated that potential action could include seeking redress in federal court. 

A city spokesperson told WRDE News Friday that the city received Byron’s letter and it has been sent to the town’s lawyers for review.

Last month, an Oklahoma elementary school made modifications to its yearly holiday performance by no longer allowing students to participate in a live nativity scene. 

The move was made after the Wisconsin-based Freedom From Religion Foundation sent a letter to Edmund Public Schools objecting to religious displays in the yearly holiday performance. 

In response, the Christian conservative legal group Liberty Counsel sent a letter to the school district saying that it stands ready to defend the school district at no cost if FFRF chooses to pursue a lawsuit. 

“FFRF has once again selectively related what actually happened in a suit, in order to frighten a school district into compliance,” the letter written by Liberty Counsel attorney Richard Mast reads. “While Establishment Clause concerns are heightened with elementary students, a live Nativity scene as part of a balanced Christmas program is not an automatic Establishment Clause violation.”

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