Nothing announces the coming Christmas season like a local government that bans nativity scenes on public property.

Rehoboth Beach, Delaware has hosted Christmas displays on a prominent piece of public land for decades and invited local organizations to participate in providing the decorations. Two years ago, the city decided that all religious displays would be relegated to a piece of private property located a half mile away, including a Nativity scene sponsored by the local Knights of Columbus.

Following unsuccessful attempts to convince the local authorities to allow the crèche to return, the Knights have filed a First Amendment lawsuit against town.

The Bandstand Circle is a popular commercial site where the Rehoboth Beach community comes together, according to the legal complaint filed by First Liberty Institute, the religious liberty public interest law firm representing the Knights. Over time, it has become the primary location of the community’s holiday traditions. Each year, residents of the Rehoboth Beach community visit the Bandstand Circle and the boardwalk to view the holiday displays and participate in the community’s celebration of the Christmas season.

The Nativity scene, originally sponsored by the local Kiwanis club since the 1930s, was taken over by the Knights in 2018, the year the trouble began.

While the town asserts that the crèche is too large for that location, it is permitting a similarly sized “Santa’s house” to stay. Further, its public statements suggest an anti-religious purpose for its actions. At first, according to allegations in the Knights’ legal papers, the City Manager simply said that the Knights could not put up the crèche unless all other religious organizations were represented as well. After inquiring and finding no other interest by other entities, the Knights assumed they could put up the crèche and did so, only to be ordered to remove it. They complied.

In 2019, the city again refused to allow the Knights to set up the crèche near the Bandstand Circle saying in an email that “The Boardwalk is public property. Unfortunately, the crèche cannot be placed there.” The city subsequently clarified that the reason it could not be included in the display is that it was “religious.”

The city proposed that all religious displays, and any additional secular ones as well, could be placed on a piece of private property offered by the local Chamber of Commerce. That left the space near the Bandstand Circle decorated with only secular displays.

There’s just one problem with that, according to First Liberty. Creating a space for secular organizations to put up decorations while denying that same opportunity for religious messages violates the First Amendment.

“The City’s policy of prohibiting religious messages on public property—both facially and as applied—constitutes viewpoint-based discrimination in violation of the Free Speech Clause of the First Amendment,” the lawsuit alleges. “By prohibiting private organizations from displaying religious holiday messages on City property, while simultaneously allowing private organizations to display secular holiday messages, Defendants’ policy facially discriminates against religious viewpoints in violation of the First Amendment.”

Often, government officials are ill-informed about their responsibilities under the First Amendment, and wrongfully conclude they are required to prohibit religious messages while allowing only secular messages on public property in cases like this. They unwittingly create the very constitutional problem they think they are avoiding. That may very well be the case here. Hopefully, the issue will be resolved quickly in time for this year’s Christmas celebration in Rehoboth Beach.


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