2 Florida cities sued for rejecting Nativity scene

By The Associated Press
12.08.05

Editor's note: CBS News reported that shortly after this lawsuit was filed, the two cities allowed the Nativity scene to be displayed.

JACKSONVILLE, Fla. — A conservative legal group sued two north Florida beach cities this week after they banned the display of a Nativity scene at a public park they share while allowing a Menorah and Christmas tree.

Mathew Staver, president and general counsel of Orlando-based Liberty Counsel, is seeking a temporary restraining order requiring the cities of Neptune Beach and Atlantic Beach to permit the Nativity display in Town Center Park. A hearing was scheduled for tomorrow before U.S. District Judge Harvey Schlesinger.

The federal suit was filed on Dec. 6 on behalf of Ponte Vedra Beach resident Ken Koenig, whose request to display a 40-inch-tall Nativity scene was denied by both cities. Koenig did not immediately return a telephone call seeking comment.

“To exclude a private Nativity scene from an open forum where a Christmas tree and a Menorah are displayed is a clear violation of the First Amendment,” Staver said. “While the towns justify their discrimination by contending that the Menorah is secular, the Supreme Court has recognized the Menorah as a religious symbol. By banning the Nativity scene while permitting the Menorah, the towns have engaged in the worst kind of constitutional violation — preferring one religion over another.”

He added the recent controversy over some governments and business referring to “holiday trees” instead of Christmas trees reinforces his belief that there “is a war on Christmas.”

Christopher White, city attorney for Neptune Beach, said he had not been served with the suit, but was involved in drafting the decision denying Koenig’s request.

“We feel the City of Neptune Beach has followed the mandates of the U.S. Supreme Court,” said White.

White based his denial on the Supreme Court’s decision 1989 decision in Allegheny County v. ACLU. In that case, the Court ruled 5-4 that a Nativity scene inside a Pittsburgh courthouse endorsed Christianity, while a Menorah outside the courthouse was constitutional.

“That decision has not been changed, which in our opinion is the law of the land,” White said.

Alan Jensen, Atlantic Beach’s city attorney, said he had not seen the lawsuit and had no comment.