Judge Orders Trial to Find if Downey Creche Is Illegal

A judge has decided that a trial must be held to determine if Downey violated California’s constitutional ban against showing religious preference by allowing a Nativity scene to be set up near City Hall. The decision leaves the creche in place through the holiday season.

Los Angeles Superior Court Judge Richard A. Lavine ruled Monday that the case could not be resolved by a summary judgment sought by the American Civil Liberties Union. Lavine declined to order that Nativity scene be dismantled pending trial.

ACLU attorney Carol Sobel said she will take the case to trial sometime in late spring.

City officials applauded the ruling.

‘We’re Pleased’

“We’re pleased there’s no order with respect to the ability of the people of Downey to maintain the Nativity scene,” City Atty. Carl Newton said.

The creche, which is displayed in a park at the Downey Civic Center, includes three-quarter-scale figures of the baby Jesus in a straw-lined manger, Joseph and Mary, three wise men, angels, camels, sheep and goats. It bears a sign saying “Happy Birthday Jesus.”

The ACLU contends that placement of the Nativity scene across the street from the police station and near City Hall violates the state Constitution, which prohibits governments from showing discrimination or preference toward a religion.

Downey counters that it is not required by the Constitution to ban a privately owned display from one of its public parks.

Order Won Last Year

Last year, the ACLU sued Downey on behalf of three city residents and won a temporary retraining order requiring the removal of the creche from in front of City Hall, where it had been erected with the help of city workers.

The Downey Christmas Assn., a citizens group, moved the Nativity scene to the park near the historic city arch, where it was erected this year.

A hearing was set for last January, but because the holiday season passed, the ACLU decided to wait to press resolution of the case, Sobel said.

On Nov. 14, the ACLU filed a motion for summary judgment, which was heard this week by Lavine. The lawsuit would force the creche to be moved out of the Civic Center.

“We’re glad we don’t have to move the scene,” said Marilyn Evans, chairwoman of the Christmas association. “We’ve gone through all the proper channels to get permits and display (the creche). It’s a public park.”

Last week, Los Angeles Superior Court Judge Robert H. O’Brien granted a request by the City of Los Angeles to display a historic Jewish menorah at City Hall. In that case, the ACLU contended that displaying the menorah in City Hall violated both United States and California constitutional requirements of separation of church and state.