# Petition for Writ of Certiorari — Knights of Columbus v. Town of Lexington

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1486%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1054

## Text

" = eS &

No, VANS 7 1 FEB 26 2002
“SRRCE GF Te Gua

IN THE

Supreme Court of the Anited States

KNIGHTS OF COLUMBUS, COUNCIL #94,
LEXINGTON, MASSACHUSETTS; et al.,

Petitioners,
v.

TOWN OF LEXINGTON, et al.,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHESTER DARLING
Counsel of Record
306 Dartmouth Street
Boston, Massachusetts 02116
(617) 536-1776

February 27, 2002

wer ene cc
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

| oda

QUESTIONS PRESENTED FOR REVIEW

(1) Whether a facially content neutral regulation ban-
ning all unattended structures in a traditional public
forum, the display of the créche in this case, enacted
and motivated in response to citizens who opposed
the display, violated the free speech and free exercise
rights of petitioners protected by the First and Four-
teenth Amendment rights of petitioners.

(2) Whether a generalized fear by government that a
public forum might be aesthetically damaged by the
threatened displays of others, constituted a significant
enough governmental interest to justify a ban on all
unattended structures in a traditional public forum,
or whether such governmental action violated peti-
tioner’s free speech and free exercise rights protected
by the First and Fourteenth Amendments of the
United States Constitution.

PARTIES TO THE PROCEEDING

The plaintiffs are the Knights of Columbus, Coun-
cil #94, Lexington, Massachusetts and Michael J.
O’Sullivan, who brings this action individually and as
Grand Knight of the Knights of Columbus, Council
#94, Lexington, Massachusetts.

The defendants are the Town of Lexington, the
Board of Selectman of the Town of Lexington and the
members of the Board of Selectmen: Jeanne K.
Krieger, Catherine M.D. Abbott, Elizabeth B. Eddison,
Peter D. Enrich, and Dawn E. Mckenna. The natural
defendants are sued in their official capacities.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..............c000. i

PARTIES TO THE PROCEEDING ..........cecccccesccececeees ii

SAME CIE FSET OME UI occsncccccccscscessesccacceccscceccncase v

I 1

EEE ee Le ee 2

CONSTITUTIONAL AND STATUTORY
PEAT V EO IETD LIUVOLVIELD oo. ccccccccescscasesscsecsocsene 2

STATEMENT OF THE CASE .............cccccssscccesssssscccees 3

REASONS FOR GRANTING THE WRIT. ...............00005. )

I.

Il.

THE LOWER COURT ALLOWED A
HECKLER’S VETO OF

PETITIONER’S SPEECH INA
TRADITIONAL PUBLIC FORUM. ......... 6

A. Because the regulation was
not content neutral and
because it intruded on an
eighty year tradition of
speech and religious
exercise, it deserved to be
examined beyond its mere
RII aig ide ee 13

PRESERVATION OF THE

AESTHETICS OF THE GREEN IS
INSUFFICIENT GROUNDS TO

PROHIBIT DISPLAYS THAT DO

NOT DAMAGE THE GREEN. .............. 17

iv

A. The regulation, standing
alone, touches on displays
that are both
communicative and non
communicative, and serves
no legitimate government
interest as it was enacted in
anticipation of aesthetic
damage that was not in the
record and may never
RUSSERT ers Epes PROT 18

B. Any legitimate
governmental interest could
have been achieved by far
less intrusive measures,
including waiting until
threats to flood the town
with permits actually
materialized. The selectmen
should have exercised their
duty to issue permits in a
responsible manner,
applying “time, place and
manner” considerations

Es dvs thecicicendcccatosncnns 19

I IRIN senciicetinienachainshinbinmeensdatkienqaiacioniniceiesn 21

API icicstintesintiiinindainaidainsoninens follows Conclusion
APPENDIX A

Opinion of the United States Court of
Appeals for the First Circuit Upholding
Summary Judgment for the Respondents

Vv

Appendix to Opinion:

Rules and Specifications Regulating

the use of the Battle Green (as
GUNES BE DOOD asco nicdseicscasssdsscoccsceces, l6a

APPENDIX B

Judgment of the United States Court of
Appeals for the First Circuit Upholding
Summary Judgment for the Respondents

sansadenchsakbedpebbindehesbiodaisaceiisidicbsbitéaldsisinesieats.: 23a

APPENDIX C

Judgment of the District Court .................. 24a

APPENDIX D

Report and Recommendation of the

IN Aeietainnsiitiismnticntinincgi att 27a

APPENDIX E

Rules and Specifications Regulating the

use of the Battle Green (as adopted in

BONNY sidaisasesinssssbdsbhighicaatglnedaueel cocci ies 67a

TABLE OF AUTHORITIES

CASES:
Boos v. Barry, 485 U.S. 312 (1988) o..ceeccccccscceece. 10
Bursen v. Freeman, 504 U.S. 191 PRIMED iibnssceceskacd 20
Capitol Square Review and Advisory Board v.

Pinette, 515 U.S. 753 (1995) 0.0.0... 12, 13, 20
Church of Lukumi Babalu Aye v. City of Hialeah,

aD WMD. THe CMO ditathsrechaiecencsice: 12, 15, 17
Clark v. Community for Creative Non Violence,

DOR A, Fe U0 behitscrentteai 10n

vi

Forsyth County, Georgia v. Nationalist Socialist
Movement, 505 U.S. 123 (1992) ...............006. 10

Graynard v. City of Rockford, 408 U.S. 104
CRD T ED cccccccciccsencscctenssensatedsuncnaldeuietbaanaiasatianes 10

Hustler Magazine, Inc. v. Falwell,
GOS UD. 4G (RGGED ccccccccccesecsscsnstccsscsencscsscous 10

Knights of Columbus v. Town of Lexington,
124 F. Supp. 2d 119 (D.Mass. 2000)
ee ne 2

Knights of Columbus v. Town of Lexington,
138 F. Supp. 2d 136 (D.Mass. 2001)
EC 2

Riley v. National Federation of the Blind,

467 UB. TEE CHpee ccccceeersseicaeen 14n
Southeastern Promotions Ltd. v. Conrad,

4B UD. GOS THOT ctcstnecisttecmistintetiiamnen 14
Tinker v. Des Moines, 393 U.S. 503 (1969) .............. 12

United States v. Grace, 461 U.S. 171
EQIIEEEE <cccoccocscnussusendicuaibaneiaancnaen 10n, 15, 19

Ward v. Rock Against Racism, 491 U.S. 781
CRIIGD cccccccsscssccossenpegevcseuiieabamecaal 10n, 15, 19

CONSTITUTIONAL PROVISIONS:

Amendment I to the Constitution of the
Cee GRMIOG ccchcdccenstucendindancdaiaiie 2, 12, 20

vii

STATUTES:

United States Code
I 2
he 2, ee ee 2
28 U.S.C. 881331, 1343 .................00066..... y
cg RARE Are 5
ge REET ane 5

a SI IIIT “Stblihsdubsepthsishetaiods abeibaaatess at 5

No.

IN THE

Supreme Court of the United States

KNIGHTS OF COLUMBUS, COUNCIL #94,
LEXINGTON, MASSACHUSETTS; et al.,

Petitioners,
v.

TOWN OF LEXINGTON, et al.,
Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

seuninietneeenimeies

—a ou

PETITION FOR A WRIT OF CERTIORARI

asuinieneienemmnl
aieiiianieneneadl

Petitioners, the Knights of Columbus, Council #94,
et al, respectfully pray that a Writ of Certiorari issue to
review the decision entered by the United States
Court of Appeals for the First Circuit, dated November
29, 2001 (App. la- 22a).

OPINIONS BELOW

The opinion of the United States Court of Appeals
for the First Circuit upholding summary judgment for
the respondents (App. la - 22a) is reported at 272
F.3d 25 (lst Cir. 2001). The Decision of the District
Court is reproduced at App. 24a - 26a. The Report
and Recommendation of the Magistrate is reproduced
at App. 27a - 66a.

2

Additional decision in this case, which are not di-
rectly relevant to this petition are reported at: Knights
of Columbus v. Town of Lexington, 138 F. Supp. 2d
136 (D.Mass. 2001) (Motion for protective order
granted in part, denied in part); Knights of Columbus
v. Town of Lexington, 124 F. Supp. 2d 119 (D.Mass.
2000) (denying petitioner’s motion for a preliminary
injunction).

JURISDICTION

The judgment of the Court of Appeals was entered
on November 29, 2001. A rehearing en banc was not
sought by either party. This Court has jurisdiction
under 28 U.S.C. §1254(1).

Jurisdiction was appropriate in the Court of Ap-
peals under 28 U.S.C. §1291 following the entry of a
final judgment by the District Court. Jurisdiction in
the District Court was proper under 28 U.S.C. §§1331
and 1343(a)(3)-(4).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

This case involves the Free Speech and Free Exer-
cise Clauses of the First Amendment to the Constitu-
tion of the United States as applied to the states
through the Fourteenth Amendment. “Congress shall
make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech.” U.S. CONST. amend. I.

The Town of Lexington’s Rules and Specifications
Regulating the Use of the Battle Green are too long to
reproduce here and are included in the appendix at
16a - 22a (2000 amendments) and 67a - 70a (1986
version).

3

STATEMENT OF THE CASE

This case involves an amendment to the town’s
regulations governing the use of the Battle Green in
Lexington Massachusetts, site of the opening battle of
the American Revolution. The amendment was en-
acted to deal with the longstanding division within the
Town over the presence of a privately owned créche
(Nativity Scene) on the Battle Green.

The Battle Green of Lexington is the former town
common, deeded to the residents of Lexington as a
place to construct their parish church/meetinghouse.
The meetinghouse and its expansions were in use on
the Green from 1692 to 1848. It was adjacent to the
church/meetinghouse where the minutemen of Lex-
ington gathered and fought on April 19, 1775 and
where seven of them remain buried today, the first
casualties of the American Revolutionary War.

The church/meetinghouse is now gone, replaced
by a stone pulpit and bible marking its former loca-
tion.

The Battle Green has remained a focal point of re-
ligious activity for the people of Lexington and the
parties have agreed that the Green is a public forum.
One form of religious worship practiced on the Battle
Green since at least the beginning of the last century
has been the placement of a créche during the periods
of Advent and the Epiphany, which make up the
Christmas Season in the Christian tradition. The
Town itself was once responsible for the maintenance
and placement of the créche, but in 1973, the Lexing-
ton Council of the Knights of Columbus and the
Simon W. Robinson Lodge, Ancient Free and Accepted
Masons, both fraternal Orders of Lexington, assumed
the ownership interest of the créche and its display on
the Battle Green through 1999 with a plaque describ-
ing the créche as a private display.

4

The Green has been used as a gathering place for
the expression of all views: political, religious, per-
sonal, public, parades, foot races, weddings, military
ceremonies conducted by military Chaplains, patriotic
reenactments, sunrise services, prayer vigils, union
protests, press conferences, Halloween parades, labor
rallies, a diversity festival, Easter sunrise services,
peace vigils, , reenlistment ceremonies, interfaith ser-
vices, protests over the exclusion of the créche, pro-
tests over the display of the créche, and community
bazaars. —

In 1998 the placement of the créche on the Green
by the petitioners became a matter of public dispute.
The widely publicized issue was addressed by a group
formed by a committee of clergymen and laymen, the
group was eventually called the “Meeting Ground”.
The Meeting Ground through its leader, Rev. Cohen,
reported to the Selectmen their suggestions and rec-
ommendations as to the placement of the créche on
the Green, and in 1999 the Board of Selectmen per-
mitted the créche on the Green for a three week pe-
riod.

Subsequent to the Board’s decision to allow the
three week display in 1999, it began receiving re-
quests to allow a wide range of religious structures on
the Green for comparable periods. The Meeting
Ground again reported to the Selectmen, a public de-
bate ensued, and on July 24, 2000, the Selectmen
voted 4 to 1 to ban all unattended structures from the
Green. It also made other modifications in the rules
and regulations regarding the conduct of activ'ties on
the Battle Green.

On October 30, 2000, the Selectmen voted to deny
the appellants a permit to display their créche. The
appellants sought preliminary injunctive relief against
the defendants in their Complaint in the District
Court, Docket No. 00-12360 N.G., in connection with
the deprivation under color of law of the plaintiffs’

5

rights as guaranteed by the Constitution of the United
States, particularly the First and Fourteenth Amend-
ments to the Constitution of the United States. The
action was also brought under Title 42 United States
Code §1983. The jurisdiction of the Court was in-
voked pursuant to 28 U.S. C. §§ 1331, 1343(a)(3) and
(4) and 2201. Supplemental jurisdiction was sought
over all state claims. Venue was proper under 28
U.S.C. §1391(b), as the defendants were located in the
District of Massachusetts and the cause of action
arose in the District of Massachusetts.

After some discovery, cross motions for Summary
Judgments were heard by Dein, U.S. M. J. and on
August 7 2001, the Magistrate issued her report and
recommendation on the cross motions for Summary
Judgment.

The District Court Judge, Nancy Gertner, approved
and affirmed the report of the magistrate and on No-
vember 29, 2001 entered Summary Judgment for the
appellees and dismissed the case.

The appellants appealed through the United States
Court of Appeals, First Circuit, Docket No. 01-2460,
and on November 29, 2001, the Summary Judgment
in the District Court was affirmed by the United
States Court of Appeals for the First Circuit, rejecting
the plaintiffs’ claims that their right of free speech and
free exercise were violated by the government..

REASONS FOR GRANTING THE WRIT

The right of free speech and free exercise in a tra-
ditional public forum was destroyed by a blatant con-
tent-based heckler’s veto that was ratified by the Cir-
cuit Court of Appeals.

The court below, applying intermediate scrutiny,
accepted at face value what was clearly pretextual and
anecdotal reasoning, as sufficient justification to ban
unattended structures in a public forum, that tar-

6

geted a nativity display in this case, whose message is
centuries old and whose symbolism is inextricably in-
tertwined with Petitioner’s speech, central religious
beliefs and longstanding public expression. The stan-
dard of review, because the vote was content based,
should have been strict scrutiny.

The ruling succeeded in shielding government offi-
cials in the town of Lexington, Massachusetts from
the discomfort and unpleasantness of standing up to
a small but vocal band of hecklers whose principle
weapon was a crude threat to flood the town with
other display requests if the town did not relent. The
court below created a new precedent that will enable
other municipalities, using the same pretextual and
anecdotal reasoning, to exclude a unique form of reli-
gious expression that has been traditionally displayed
in public forums across our nation.

The First Circuit’s broad application of its version
of a “content neutral” template can now serve as a
precedent to banish more than the religious expres-
sion and speech represented by devotional displays
such as Petitioner’s créche. Other religious expres-
sions, parades, processions and festivals, can be re-
moved from the streets and parks of our nation by the
simple expedient of enacting “facially content neutral”
regulations.

Here, a complete genre and unique form of public
worship has effectively been banned from the public
square.

I. THE LOWER COURT ALLOWED A HECKLER’S
VETO OF PETITIONER’S SPEECH IN A TRADI-
TIONAL PUBLIC FORUM.

In response to a series of threats from vocal private
individuals to flood the town of Lexington, Massachu-
setts with requests to erect numerous other displays
on Lexington Green if the town did not remove the
créche from the Green, the town board adopted a

7

regulation of speech explicitly targeting the elimina-
tion of the créche, even though the créche had been
displayed, unattended, during the period of the Ad-
vent to the Epiphany, for most of eighty years.! App.
at 8a - 9a (“the Board proposed the regulation only
after requests for permits for alternative religious dis-
plays began to sprout. . . Fearing a flood of applica-
tions and a corresponding cluttering of the Green, the
Board devised a regulation prohibiting all unattended
structures”). Id.2

The town board of Lexington, adopted a regulation
on July 24, 2000 that 1. limited the eligibility for pub-
lic expression on the Green to active events of less
than eight hours; 2. restricted display of ceremonial
structures to those that were “in connection with spe-
cial events and limited in duration to the period re-
quired for such events; and 3. created an explicit
prohibition against “placement on the Green of any
' unattended structure.” App. at 32a - 33a.

The court below ruled that the town’s action was
“a far cry from an invidious singling-out of the
créche.” Id.

Even a cursory review of the record below under-
mines such pronouncements.

In Lexington, Massachusetts it is no secret that
the créche has been a “source of friction within the
town” for some years. App. at 3a.

1 In 1999 after meetings with clergy and citizens, the Knights of
Columbus agreed to limit the display of the créche to three weeks.
App. at 4a. *

2 The town’s motivation, purpose and intended effect of the regula-
tion was to eliminate the créche from the Green. “There is no ques-
tion in the present case that the opposition to the créche moti-
vated the amendment to the regulations. . .” Report and Recom-
mendations on Cross Motions for Summary Judgment. Magistrate
Judith Gail Dein, U.S. Magistrate, August 7, 2001. App. 55a - 56a.

8

The court below described the atmosphere in 1999
as follows:

“(The town] began receiving requests to allow a

wide range of other religious structures on the
Green for comparable periods. One group de-
sired to place a sign near the créche indicat-
ing some citizens’ objections to its presence
on public land. Other applicants requested
permission for a display honoring witchcraft
at Halloween and for the erection of a pyramid
to honor the Egyptian Sun God Ra during the
month of April. Yet another resident inquired
about the possibility of erecting a Sukkah, an
open hut-like structure, to commemorate the
Jewish Harvest festival of Sukkoth.”

App. at 4a.3

Town selectmen responded to the threats by
adopting a new regulation specifically aimed at resolv-
ing the “problem” of the créche. The Chairman of the

3 While the court below cited to a half dozen requests, the record
below contained other requests and proposals that were not men-
tioned. For example: one suggestion was for the placement of a
skeleton and a ghost, another sought “a depiction of human sacri-
fice in commemoration of the Mayan or Aztec religious festivals,
which were oriented around blood letting’; another sought “a
commemoration of the religious Crusaders, which included the
burning of entire communities of Jews, and the sacking of Chris-
tian Constantinople”; still another sought “a statue of the late Flip
Wilson, in honor of his “Church of What’s Happening Now’; also,
another proposal surfaced “for a heard of live cows” on the Green
to honor the Hindu religion. Still another suggested that
“[a]lternatively, the town could simply ban all unattended displays
on the Battle Green. If anyone cares enough to stay up all night
with their religious or political displays for four weeks, maybe we
should let them have that opportunity. But having people shove
their fetishes in our faces and then walk away is just too much.”
Exhibit K, L: Appendix in Support of Defendant’s Motion for Sum-
mary Judgment.

9

Board of Selectmen for the town, speaking for the
Board, without contradiction, stated:

“At our meeting on July 10%, we directed the
town counselor to recommend changes in the
bylaws to eliminate freestanding, unattended
structures on the Battle Green. This directive
was the culmination of a process initiated by
the Board nearly two years ago to bring clo-
sure to whether - to the issue of whether to
continue to permit the placement of the
créche on the Green.. .”

Record Appendix, Vol. 2 at 412, Appeals Court, tran-
scribed from town videotape of town’s Board of Se-
lectmen’s meeting of July 24, 2000: also, response of
the town to Pl. statement 920, Chairman Jeanne K
Krieger, Board of Selectmen Meeting. Court of Appeals
App. 414-415, pursuant to the town’s response to
plaintiffs statement of undisputed facts, pursuant to
Rule 56.1 that were deemed admitted under local rule
56.1 for purposes of summary judgment.

“The Board of Selectmen is acting on our per-
sonal convictions and what we as individuals
believe represents the perspective of a major-
ity of the citizens of Lexington. As one col-
league said to me this weekend, there are
many church going Christians, many long
time residents of Lexington who recognize
that times have changed and that the display
of the créche on the Green is no longer appro-
priate. I would hope that our discussion this
evening will focus on the recommended
changes in the by-laws and enhancement and
the appropriateness of invoking what we be-
lieve to be the majority opinion of the Board,
and the majority opinion of the residents of
Lexington.”

Id. at 414.

10

The court below justified the town’s action, reason-
ing that the town was on the “horns of a dilemma”
App. at 4a,.* Capitulation to threats of disruption from
others is not content neutral. See, Graynard v. City of
Rockford, 408 U.S. 104, 117 (1972). ([E]xpressive ac-
tivity could not be prohibited because of a mere desire
to avoid discomfort and unpleasantness that always
accompany an unpopular viewpoint.” See also, For-
syth County, Georgia v. Nationalist Socialist Movement,
505 U.S. 123, 130-134 (1992). “Listeners’ reaction to
speech is not a content-neutral basis for regulation.”
Id. 134 (emphasis added). See also, Boos v. Barry, 485
U.S. 312, 322 (1988) (it would be inconsistent without
“longstanding refusal to [punish speech] because the
speech in question may have an adverse emotional
impact on the audience”), citing Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 55 (1988). -

4 Petitioners argue that there is no dilemma. The ban penalizes a
substantial amount of protected speech by setting arbitrary time
limits and banning the unattended display of the créche during
prescribed periods that are religiously significant to Christians.
There was no offer to allow the petitioners use of a smaller or dif-
ferent portion of the Green, or to have the créche on the Green for
a reduced period of time as was previously agreed to by the town
and petitioners. There has never been a complaint about the size
of the display, or any complaint regarding the text of the sign iden-
tifying the créche as a private display. The town’s only suggestion
was that private property near the Green might be a more appro-
priate site. App. at 12a n.5, 63a: Alternative Avenues of Commu-
nication. Compare this Court’s treatment of unattended displays in
Clark v. Community for Creative Non Violence, 468 U.S. 288 (1984).
In Clark, the tents stayed up, while the conduct, sleeping and
camping in the park, was prohibited. In Ward v. Rock Against Ra-
cism, 491 U.S. 781 (1989) this Court allowed the concert to occur
but upheld a rule that the volume be turned down. In United
States v. Grace, 461 U.S. 171 (1983). this Court invalidated a
statute prohibiting leafleting and picketing adjoining Supreme
Court building, but permitted such activity on the sidewalk. A to-
tal ban was not necessary to achieve this end.

11

The lower court reasoned, if the town allowed for
the créche, it would have to allow for all other compet-
ing applications. App. 9a. The lower court then agreed
with the town that granting all applications “likely
would compromise the aesthetic and historic elements
of the Green.” App. at 4a. The pretextual nature of
this justification is clear from the record.5

The court below upheld the town’s action, because
it affected all unattended structures equally, regard-
less of the context or motivation that caused it to be
enacted. The substantial state interest was served
because the regulation was enacted, ostensibly, to
preserve the “aesthetics” of the forum. App. 15a-16a.
[Aesthetics issue addressed in Part II, infra.] Because
of the stated purpose, the lower court concluded that
the regulation was content neutral, and hence, a

5 “The minutes of the Board’s meetings reveal a keen awareness
that if it continued to allow a display of the créche, many of these
competing applications would have to be granted. . . . but granting
them all likely would compromise the aesthetic and historic ele-
ments on the Green.” App. at 4a. This statement by the court be-
low is flatly contradicted by the affidavit of Peter Enrich, a member
of the Board of Selectmen for the town. “The Board understood
that some or all of these potential applications were not serious,
and that the prospective applicants had no desire to actually erect
such structures on the Green. However, the Board also realized
that it nevertheless would be required to permit such displays on
the Green if the Board granted a permit for the créche.” Affidavit
of Peter Enrich, Record Appendix, Volume 1, Appeals Court, p.82.
Selectman Enrich also characterized the plaintiffs religious dis-
play as a “majority religious symbol” that hurt the feelings of some
residents and that some of the residents were alienated — that
they ‘didn’t belong’ and that the religious display was disenfran-
chising.” Pl. local rule statement; 56.1 Statement 25. Statement of
Undisputed Material Facts. Even if the court below misunderstood
the seriousness of the requests, the town did not. The court below
clearly abandoned its responsibility to strictly examine why a
unique form of public religious expression was eliminated from a
public forum. To cite to erogenous zoning cases and “concanta-
tions” of Establishment issues with no basis in the record demon-
strates how sadly the First Amendment was observed in this case.

12

proper exercise of the town’s regulatory powers. App.
at 1la-12a (“we hold that the total ban on unattended
structures is both content neutral and narrowly tai-
lored to achieve a substantial governmental interest”).

The court below was plainly wrong. Having an-
nounced that the regulation was content-neutral the
court below said it didn’t have to look further regard-
ing the context within which it was enacted. But the
context of the regulation was based entirely on the
content of expression, the display of the créche. The
court below declined to apply the scrutiny required of
such content based measures as articulated by this
Court in Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 540 (1993). [Discussed, infra.]
The actions of the court below amounted to ratifying a
heckler’s veto.

“Because speech is often provocative and chal-

lenging, and may strike at prejudices and pre-
conceptions and have profound unsettling ef-
fects as it presses for acceptance of an idea,
freedom of speech, though not absolute is
nevertheless protected against censorship, or
punishment, unless shown to produce a clear
and present danger of a serious substantive
evil that rises far above public inconvenience,
annoyance or unrest.”

Id., citing U.S. Constitution, Amend 1. See also Capi-
tol Square Review and Advisory Board v. Pinette, 515
U.S. 753, 761 (1995). See, also, Tinker v. Des Moines,
393 U.S. 503, 508-509 (1969).

13

A. Because the regulation was not content
neutral and because it intruded on an
eighty year tradition of speech and reli-
gious exercise, it deserved to be exam-
ined beyond its mere words.

Because it denominated the regulation as content
neutral, the lower court applied intermediate scrutiny.
App. at 9a, and its improper application of the Capitol
Square decision, the court committed clear error.

Capitol Square, 515 U.S. 761.6

Petitioners argue that the regulation was not con-
tent neutral, precisely because it was adopted to ad-
dress “the problem” of the créche, and because of
this, strict scrutiny should have been the standard.
“The strictest standards apply here.” Capitol Square,
915 U.S. at 761. But regardless, the ban cannot with-
stand either intermediate or strict examination be-

6 The evident reliance of the court below on Capitol Square, 515
U.S. 753 (1995) as permitting a complete ban on unattended dis-
plays is misplaced. Capitol Square involved the placement of a
Roman Cross adjacent to the state house in Columbus Ohio. The
sole issue in the case was the Establishment Clause. In the judg-
ment and other opinions, the Justices made a number of observa-
tions and qualification regarding the nature of the forum involved
in the case. These discussions are informative. In the decision,
Justice Scalia stated, “a ban on all unattended displays, which did
not exist here, might be [a reasonable, content-neutral time, place,
and manner restrictions].” Jd. at 761; Justice Souter in his opinion
Id. at 784, described such areas as “in forums around pubic
buildings and “in the area around the seat of government.”; Jus-
tice Stevens, in his dissent stated, “may impose a ban in such a
forum” Id. at 803, and “in front if its seat of government” id. at
806. Unlike the forum at issue in Capitol Square, the present case
involves a traditional common, separate from the seat of govern-
ment. Lexington Green is not comparable to the Plaza immediately
adjacent to the lawn of a Capitol building. It is the situs of the
complete spectrum of private, religious, political, military, patri-
otic, union and governmental speech.

14

cause it was impermissible state action in the form of
a heckler’s veto. ”

The court below adopted mere speculation of what
might occur as sufficient grounds to prohibit Peti-
tioner’s expressive activity, a standard never adopted
by this Court.

Where free speech is concerned, it has been the
rule that government not place undue burdens until
after the speaker has spoken and some damage had
been done. Southeastern Promotions Ltd. v. Conrad,
420 U.S. 546, 545 (1975).

There is no dispute in this case that the display of
the créche on Lexington Green is a free speech activ-
ity in a public forum. “[T]he town does not deny that
the Knights have a free speech interest in exhibiting
the créche or that the Green is a public forum.” App.
7a8 “The Free Speech Clause of the United States
Constitution lies at the heart of the Knights’ appeal.”
App. 6a.

7 Petitioners would also argue that the créche is pure speech.
“Thus where, as here, the component parts of a single speech are
inextricably intertwined, we cannot parcel out the speech, apply-
ing one test to one phrase and another test to another phrase.
Such an endeavor would be both artificial and impractical. There-
fore, we apply the test for fully protected expression.” Riley v. Na-
tional Federation of the Blind, 487 U.S. 781, 796 (1988).

8 The lower court stated there was a concantation of Establish-
ment Clause questions in this case. App. at 10a. The only Estab-
lishment clause issue identified in the record and in the decision
of the court below are its conclusory statements of how the Estab-
lishment Clause is applied. App. 10a-12a, 15a. The selectmen’s
belief that allowing one religious display on the Green while disal-
lowing all others would implicate the Establishment Clause was
well founded. But that is not the case here. The Petitioners never
asked that they be the only religious display on the Green. Nor can
a serious argument be made regarding misattribution as the
Knights continued to display the créche with its identifying plaque.

15

Public places “historically associated with the free
exercise of expressive activities, such as streets, side-
walks, and parks, are considered . . . public forums
for such expressive activity.” Grace, 461 U.S. at 177.
The Lexington Green has been utilized by residents to
communicate thoughts and ideas. Because of its his-
toric usage, it cannot be regulated out of use for pri-
vate displays, attended or unattended for anything
but a compelling governmental interest — an interest
that is absent in this case. Lexington Green is an ex-
ceptionally active forum where numerous types of
speech and expressive activities occur.

The court below skirted the issue of motivation,
purpose, and intended effect.

“Relevant evidence [the court should have con-

sidered] includes, among other things, the
historical background of the decision under
challenge, the specific series of events leading
to the enactment or official policy in question,
and the legislative or administrative history,
including contemporaneous statements made
by members of the decision making body.
These factors bear on the question of dis-
criminatory object.”

Church of the Lukumi Babalu Aye, 508 U.S. at 540
(internal citation omitted).

Because the lower court acknowledges, and the
record of this case demonstrates, that the regulation
was adopted in response to threats from third parties
the decision of the court should not stand. “Govern-
ment regulation of expressive activity is content neu-
tral so long as it is justified without reference to the
content of the regulated speech.” Ward, 491 U/S. at
791.

In this case, the issue of the créche being placed
on the Green was discussed repeatedly at town board
meetings. App. at 4a. It had been an issue since 1973.

16

It was a “problem”, Id. In 1998 clergy and citizens
with different viewpoints met to address the issues
raised by those who objected to the display on the
Green. An agreement was reached in 1999 to limit the
period of display of the créche to three weeks. When
the Board agreed to a three-week display, a series of
orchestrated requests began to sprout in the town.

Rather than treat each request separately, the
town chose to ban all unattended structures, thus
making the display of the créche on the Green in all
practicality an impossibility. The court below improp-
erly concluded that it is “because they are now held to
the same standard as all other similarly situated ap-
plicants.” that they feel burdened. App. at 9a. The “all
other similarly situated applicants” did not exist.
Moreover it was acknowledged in affidavit that most, if
not all the requests were not to be taken seriously.
Supra at fn 4. The transparency of this rationale of-
fered can be seen from the fact that it was not until
1999 that requests for permits began pouring in to
the town.

The fact that the language of the regulation is fa-
cially neutral does not shield it as content neutral
simply because the word “créche” or “religion” is not
mentioned.

“Facial neutrality is not determinative. The
Free Exercise Clause, like the Establishment
Clause, extends beyond facial discrimination.
The Clause ‘forbids’ subtle departures from
neutrality and covert suppression of particu-
lar religious beliefs. Official action that targets
religious conduct for distinctive treatment
cannot be shielded by mere compliance with
the requirement of facial neutrality. The Free
Exercise Clause protects against governmen-
tal hostility which is masked, as well as overt.
The Court must survey meticulously the cir-
cumstances of governmental categories to

17

eliminate, as it were, religious gerrymander-
ing.”

Church of Lukumi Babalu Aye, 508 U.S. at 533 -534
(internal citations omitted).

In this case it is undisputed that the regulation
was adopted in response to protests from third parties
who, after eighty years, started threatening the town
that if it didn’t do something about the créche, they °
would flood the town with requests to place similar
structures on the Green

II. PRESERVATION OF THE AESTHETICS OF THE
GREEN IS INSUFFICIENT GROUNDS TO PRO-
HIBIT DISPLAYS THAT DO NOT DAMAGE THE
GREEN.

As noted, supra, fn. 3, the challenged regulation
was not adopted to address any detrimental use of the
Green by petitioners. Nor was the regulation adopted
out of any legitimate concern that the “historic” use of
the Green would be compromised.? Nor is there any
record of the Knights receiving favorable treatment
over others. There were no others..There was no vote
to dislodge the créche from the Green until after the
1999 threats surfaced. Yet, aesthetics and historic
usage, are the very two reasons given for the regula-
tion. “[G]ranting [all permits] would compromise the
aesthetic and historic elements of the Green.” App. at
4a. This rationale used to ban all unattended struc-

9 “Plaintiffs do, with justification, take exception to the fact that
the defendants are now arguing that the presence of an unat-
tended expressive structure on the Green is incompatible with its
historic use and destroys its aesthetic value. See, e.g., Enrich Aff.
9131-34; Kreiger Aff. At 46,7. Since the créche has been dis-
played on the Green for eighty years it is difficult to give credence
to the defendant’s present description of the harm that is likely to
occur if the display is allowed to continue.” Report and Recommen-
dations on Cross Motions for Summary Judgment. Magistrate Ju-
dith Gail Dein, U.S. Magistrate, August 7, 2001. App. 60a.

18

tures was little more than speculative, based on fu-
ture activity that may or may not have caused any
damage.

A. The regulation, standing alone, touches
on displays that are both communicative
and non communicative, and serves no
legitimate government interest as it was
enacted in anticipation of aesthetic

. damage that was not in the record and
may never occur.

_ The town’s assertion that it was banning all unat-
tended structures to preserve the aesthetic and his-
toric use of the green, standing alone, touches both
protected speech and non communicative displays
such as bandstand seating for various events or a
truck trailers that continue to be placed on the Green
for days before events.

The evil the town ostensibly sought to eliminate:
reduce clutter or prevent damage to the park, and
preservation of historic use by banning all unattended
structures has no basis in fact, since for eighty years
the créche has been displayed and there has been no
damage to the park, and the créche is part of the his-
toric use. It has been deemed by the trial court to
have done no harm during its 80 years on the Battle
Green. App. 60a.

Moreover, a ban on all unattended displays does
not include displays authorized by the town. The town
has been unable to say exactly what it is about a pri-
vate display that negatively affects the park that a
town structure does not. Nor is it clear why an unat-
tended display causes more damage than an attended
display. A strong case, in fact, can be made that the
act of erecting and disassembling a créche daily for
the three days suggested would be more destructive
and unsightly than simply leaving it up for the period
for which earlier permits had been issued.

19

The regulation is clearly not narrowly drawn and
addresses no legitimate evil. See, Ward, 491 U.S. at
799 n.7 (“A ban on handbilling, of course, would sup-
press a great quantity of speech that does not cause
the evils that it seeks to eliminate, whether they be
fraud, crime, litter, traffic congestion, or noise. For
that reason, a complete ban on handbilling would be
substantially broader than necessary to achieve the
interests justifying it” (internal citation omitted)) See
also, U.S. v. Grace, supra.

Moreover, punishing speech and expressive activ-
ity of one party for fear that the town may have to
clean litter, or maintain its public parks because of
the damage that may be caused by others, has never
been grounds to enact a regulation banning all unat-
tended structures. There is simply no correlation be-
tween an unattended Nativity Scene and any damage
that might occur, sufficient to warrant such a Draco-
nian enactment.

B. Any legitimate governmental interest
could have been achieved by far less in-
trusive measures, including waiting until
threats to flood the town with permits
actually materialized. The selectmen
should have exercised their duty to issue
permits in a responsible manner, apply-
ing “time, place and manner” considera-
tions appropriately.

The legitimate governmental interest in preserving
the aesthetic and historic use of the Green could have
been met by a far less harsh rule, stopping far short of
prohibiting the display of the créche during the period
requested. As noted supra, town officials doubted the
legitimacy of the requests for usage that were offered
by others.

It was wholly unjustified to ask the Petitioners to
endure the burden of erecting and disassembling the

20

créche daily and leaving it standing for no longer than
eight hours, and further limiting their religious obser-
vances to three days, simply to mollify town dissi-
dents. The court below should have applied strict
scrutiny because of the conditions under which the
regulation came about. “To survive strict scrutiny...
a State must do more than assert a compelling state
interest - it must demonstrate that its law is neces-
sary to serve that interest.” Bursen v. Freeman, 504
U.S. 191, 199 (1992).

Religious displays and free exercise of those beliefs
in public places is to be revered. “Our precedent es-
tablishes that private religious speech, far from being
a First Amendment orphan, is as fully protected un-
der the Free Speech Clause as secular private expres-
sion.” Capitol Square, 515 U.S. at 760 (internal cita-
tions omitted).

“[Pjarticular expressive activity could not be pro-
hibited because of a mere desire to avoid discomfort
and unpleasantness that always accompany an un-
popular viewpoint.” Graynard, 408 U.S. at 117. Yet,
avoiding discomfort and unpleasantness was exactly
the motivation for adopting the regulation as noted,
supra. It was the “only” reason. There is not a single
reference in the case below that the créche negatively
affected the aesthetics of the Green. The fact that the
créche has been displayed for eighty years makes it
unmistakably clear that its display at Christmas is
part of the historic usage of the Green.

The precedent established by this case can justify
the homogenization of citizens’ expression in public
forums and eliminate unique cultural and religious
displays or tableaus, such as the créche in this case.
It is constitutionally impermissible for government to
deem what expression is “appropriate” nor is it proper
for government to shape the form of citizens’ expres-
sion in a public forum.

21
The Petitioners hereby respectfully submit that a
per se ruling by this court that would apply “strict

scrutiny” to any regulation of free speech in a tradi-
tional public forum be adopted.

CONCLUSION

Petitioners pray that certiorari will issue.

Respectfully submitted,

CHESTER DARLING
Counsel of Record

306 Dartmouth Street
Boston, MA. 02116
(617) 536-1776

Appendix Table Of Contents

APPENDIX A

Opinion of the United States Court of

Appeals for the First Circuit Upholding

Summary judgment for the Respondents. ............. la
Appendix to Opinion:
Rules and Specifications Regulating
the use of the Battle Green (as
SE IR A l6a

APPENDIX B

Judgment of the United States Court of
Appeals for the First Circuit Upholding

Summary judgment for the Respondents. ......... 7. 20a
APPENDIX C
Judgment of the District Court........................ eee 24a
APPENDIX D

Report and Recommendation of the Magistrate ....27a

APPENDIX E

Rules and Specifications Regulating the use
of the Battle Green (as adopted in 1986) .............. 67a

la

APPENDIX A

United States Court of Appeals
For the First Circuit

No. 01-2460
KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,
Plaintiffs, Appellants,
Vv.
TOWN OF LEXINGTON ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES
DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,

and Singal, District Judge.

Chester Darling, with whom Robert Roughsedge
and Michael Williams were on brief, for appellants.

Jordana Glasgow, with whom Daryl Lapp and
Palmer & Dodge, LLP were on brief, for appellees.

November 29, 2001.

2a
Opinion of the Appeals Court

SELYA, Circuit Judge. This appeal requires us to
decide whether the Town of Lexington, Massachusetts

(the Town) violated the First Amendment by adopting
a regulation that bans unattended structures from the
historic Battle Green. The plaintiffs allege that this
regulation infringes their First Amendment rights and
that the Town adopted it for an improper purpose,
viz., to exclude the annual religious display of a
créche from the Battle Green. They also allege that, in
all events, the Town's selective application of the
regulation following its adoption fenders it
constitutionally infirm.

The district court found these’ charges
unpersuasive and granted summary judgment in the
Town's favor. We affirm: the record shows beyond
hope of contradiction that the ban on unattended
structures is a content-neutral restriction on the time,
place,.and manner of speech, narrowly tailored to
achieve a_ significant governmental interest and
framed so as to allow access to ample alternative
avenues of communication. By the same token, there
is no violation of the Free Exercise Clause because the
regulation is a neutral law of general applicability.
Lastly, the plaintiffs’ claims of selective enforcement
fail due to evidentiary insufficiency; the regulation
was only intended to apply to private parties, and
there is nothing in the record that shows preferential
treatment in respect to any unattended structure
erected by such a party.

I. BACKGROUND

The situs of this controversy is the historic Battle
Green (the Green) — the very place where the first
battle of the Revolutionary War occurred. Seven of the
eight minutemen killed during the battle are buried
there, and the Minuteman Statue — located at the
apex of the Green — memorializes the American
colonists who fought in the Revolutionary War. The

3a
Opinion of the Appeals Court

Green is a registered historic landmark, owned and
maintained by the Town.

The Town's governing legislative body is the Board
of Selectmen (the Board). The Board is entrusted with
suzerainty over, and protection of, the Green. In the
exercise of that function, the Board from time to time
promulgates rules governing the use of the Green.
Historically, these rules have allowed for a wide range
of public uses, including recreational activities and
activities involving the expression of political,
religious, and other views. The rules divide activities
on the Green into three categories: (1) allowed
activities, (2) forbidden activities, and (3) activities for
which a permit is required. To illustrate, picnicking in
small groups is allowed as a matter of right;
commercial solicitation is prohibited altogether; and
rallies are allowed if a permit is first obtained (but
otherwise are forbidden).

For most of the twentieth century, the créche — a
figurine representation of Christ's nativity in the
stable at Bethlehem — appeared on the Green for
roughly six weeks each year (in late November and
December). For some thirty years, the Town had
erected the créche, disassembled it, and stored the
components. In or around 1973, however, two
fraternal organizations — the Knights of Columbus
and the Masons — assumed responsibility for these
tasks.

There is evidence that the display of the créche
long has been a source of friction within the Town,
and that some residents complained bitterly about its
presence on the Green. For the most part, however,
the regulations, insofar as they pertained to the
créche at all, seem to have been honored more in the
breach than in the observance. Despite the fact that
the regulations have required a permit for a religious
display of this type since at least 1982, no permit ever

4a
Opinion of the Appeals Court

was sought or demanded prior to the erection of the
créche in any year before 1999.

Beginning in the fall of 1998, the issue was
repeatedly discussed at the Board's meetings. A group
consisting of clergy and citizens with various
viewpoints was formed to study the problem and
suggest solutions. This committee reported to the
Board on September 27, 1999. It unanimously
concluded that "private citizens do have the right to
have religious observances on the common land
within guidelines established by the town,” but
suggested that a shortened display period might be a
reasonable compromise. For the 1999 season, the
owners of the créche, including the Knights of
Columbus, agreed to a display period of three weeks.

Subsequent to the Board's decision to allow the
three-week display, it began receiving requests to
allow a wide range of other religious structures on the
Green for comparable periods. One group desired to
place a sign near the créche indicating some citizens’
objections to its presence on public land. Other
applicants requested permission for a_ display
honoring witchcraft at Halloween and for the erection
of a pyramid to honor the Egyptian Sun God Ra
during the month of April. Yet another resident
inquired about the possibility of erecting a Sukkah,
an open hut-like structure, to commemorate the
Jewish harvest festival of Sukkoth.

The minutes of the Board's meetings reveal a keen
awareness that if it continued to allow a display of the
créche, many of these competing applications would
have to be granted. The Board thus believed that it
was on the horns of a dilemma: it could not
constitutionally pick and choose among competing
applications, but granting them all likely would
compromise the aesthetic and historic elements of the
Green. After seeking legal advice, the Board modified
the rules governing use of the Green in several ways.

Sa
Opinion of the Appeals Court

First, it limited permit eligibility for public expressions
on the Green to active events of less than eight hours
in duration. Second, it restricted displays of a
ceremonial nature to those "in connection with special
events and limited in duration to the period required
for such events." Third, it added an _ explicit
prohibition against "placement on the Green of any
unattended structure." For ease in reference, we
annex a copy of the regulation, as amended, as an
appendix to this opinion.

On October 19, 2000, the Knights of Columbus
and the organization's grand knight, Michael
O'Sullivan (collectively, the Knights), applied for a
permit to erect the créche on the Green. The
application was constructively denied, although the
Board intimated that a one-day event that included
the créche would be approved. !

Dismayed by the new regulation and the
concomitant ouster of the créche, the Knights sued.
Although they claimed abridgement of their free
speech and free exercise rights, the district court
refused to grant a preliminary injunction. Knights of
Columbus v. Town of Lexington, 124 F. Supp. 2d 119
(D. Mass. 2000). We summarily affirmed that denial in
an unpublished order.

In subsequent proceedings, the Knights attempted
to show arbitrariness in the enforcement of the new
regulation. They introduced evidence tending to prove
that bleachers and a platform truck were left
unattended on the Green for several days prior to a
Patriots’ Day celebration, and that an unattended
podium was allowed to remain overnight around
Memorial Day.

1 In point of fact, a Town resident was granted a permit to hold «
"live" nativity scene and service on the Green on December 23,
2000.

6a
Opinion of the Appeals Court

In due course, the district court granted summary
judgment for the defendants (the Town and various
Town hierarchs). We expedited the Knights' ensuing
appeal in an effort to resolve the matter in advance of
the Christmas season.

Il. STANDARD OF REVIEW

We review a grant of summary judgment de novo,
examining the record in the light most favorable to the
nonmovant and indulging all reasonable inferences in
that party's favor. Suarez v. Pueblo Int'l, Inc., 229
F.3d 49, 53 (1st Cir. 2000). We will uphold the grant
of summary judgment only when there is no genuine
issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c).
Here, the relevant facts are largely undisputed, so our
analysis focuses on the legal question of whether
either the new regulation or its application offend the
rust Amendment.

Ill. THE FREE SPEECH CLAIM

The Free Speech Clause of the United States
Constitution lies at the heart of the Knights’ appeal.
We organize our discussion of this claim in segments.

A. The Legal Framework.

The Free Speech Clause provides, in terms, that
"Congress shall make no law .. . abridging the
freedom of speech ... ." U.S. Const. Amend. I. Under
the aegis of the Fourteenth Amendment, this
prohibition applies equally to states and their political
subdivisions. See Cantwell v. Conn., 310 U.S. 296,
303 (1940). Despite the uncompromising language in
which this proscription is couched, it is not absolute.

The Supreme Court has articulated a framework ©
for determining whether a particular regulation
impermissibly infringes upon free speech rights. That
framework dictates the level of judicial scrutiny that is
due — and that choice, in turn, informs the nature of
the restrictions on free speech that may be

~

7a
Opinion of the Appeals Court

permissible in a public forum. McGuire v. Reilly, 260
F.3d 36, 42 (1st Cir. 2001).

The triage works this way. The bedrock rule is that
government may not prohibit all communicative
activity in a public forum. Perry Educ. Ass'n v. Perry
Local Educ. Ass'n, 460 U.S. 37, 46 (1983). Content-
based prohibitions may endure — but only if they are
justified by compelling state interests. Capitol Sq. Rev.
& Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995).
Accordingly, such prohibitions engender strict judicial
scrutiny. See id. Content-neutral restrictions pose
less of a threat to freedom of expression.
Consequently, content-neutral restrictions on the
time, place, and manner of speech trigger an
intermediate type of scrutiny such that they will be
upheld as long as they are "narrowly tailored to serve
a significant governmental interest, and allow for
reasonable alternative channels of communication."
Globe Newspaper Co. v. Beacon Hill Arch'l Comm'n,
100 F.3d 175, 186 (1st Cir. 1996).

Here, the Town's limitation of free speech on the
Green is not absolute: the new regulation merely
prohibits one manner of expression (unattended
structures) in a particular place (the Green) at certain
times (when unconnected with an event). Since the
Town does not deny that the Knights have a free
speech interest in exhibiting the créche or that the
Green is a public forum, the salient question is
whether the restriction is content-based or content-
neutral. It is to that question that we now turn.

B. Content-Based or Content-Neutral?

To ascertain whether a regulation is content-
based, an inquiring court must determine whether it
regulates speech because of disagreement with the
particular message that the speech conveys. Id. at
183. The Knights concede, as they must, that the
language of the regulation is facially neutral. The ban
on unattended structures is comprehensive; it does

8a
Opinion of the Appeals Court

not discriminate among types of unattended
structures, and certainly does not single out the
créche. Thus, the Knights’ argument boils down to a
plaint that the legislative history demonstrates that
the regulation's primary purpose is to prevent display
of the créche.?

In making this argument, the Knights rely heavily
on a "free exercise" case, Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
There, the Supreme Court ruled that a municipal
ordinance prohibiting cruelty to animals was
unconstitutional because it was targeted at
preventing the sacrificial rites practiced by adherents
of the Santeria religion. Id. at 547. But Hialeah is
readily distinguishable because the ordinance at issue
there was riddled with exceptions that effectively
made it applicable only to Santeria worshipers. See id.
at 535. Thus, the ordinance — unlike the regulation
at issue here — was not content-neutral in its
operation. See id. For present purposes, the most that
Hialeah teaches_is that a court may have to look
beyond the bare language of a regulation to determine
whether its justification is content-neutral. See, e.g.,
Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) ("[G]overnment regulation of expressive activity
is content neutral so long as it is justified without
reference to the content of the regulated speech.");
D.H.L. Assocs. v. O'Gorman, 199 F.3d 50, 57 (1st Cir.
1999) (same).

In the instant case, there is nothing in the record
that evinces a content-based animus against the
créche. On the contrary, the Board proposed the new

2 The Town, citing United States v. O'Brien, 391 U.S. 367, 383-84
(1968), argues that we should not inquire into legislative purpose
when a statute is content-neutral on its face. Here, however, both
the text of the statute and the legislative history point toward
neutrality, so we need not and do not decide whether such an
inquiry is constitutionally required.

9a
Opinion of the Appeals Court

regulation only after requests for permits for
alternative religious displays began to sprout. Mindful
of the strictures of the Establishment Clause, the
Board reasonably assumed that it must treat all
applications for religious displays alike, regardless of
the message conveyed. Fearing a flood of applications
and a corresponding cluttering of the Green, the
Board devised a regulation prohibiting all unattended
structures. This is a far cry from an invidious
singling-out of the créche.3

The only inference that the record permits is that
the new regulation was conceived out of a desire to
treat all religious expression even-handedly. If the
Knights feel that the burden of the regulation falls
most heavily on them, it is perhaps because they are
now held to the same standard as all other similarly
situated applicants. While the adjustment may not be
an easy one, the outcome is inescapably content-
neutral.

C. Significant Governmental Interest /
Narrow ring.

Having determined that the regulation is content-
neutral, we now apply intermediate scrutiny to
ascertain whether it is narrowly tailored to achieve a
significant governmental interest. McGuire, 260 F.3d
at 43.

The Town asserts that its interest in preserving the
historical and aesthetic qualities of the Green amply
justifies the restriction. This is a theoretically sound
position. After all, in Globe Newspaper, we upheld,
against a free speech challenge, a ban on news racks
in a historic Boston neighborhood. 100 F.3d at 195.

3 The Town's longstanding practice of permitting the créche to be
displayed on the Green without a permit helps, rather than
hinders, the Town's argument. That practice shows a receptivity to
the display and, contrary to the Knights' importunings, creates no
entitlement to preferential treatment in the future.

/

;
10a
Opinion of the Appeals Court

We recognized there that aesthetic preservation may
warrant a content-neutral restriction on speech in a
public forum. Id. at 187. As was true in Globe
Newspaper, the Town's interest in aesthetic
preservation qualifies as a significant one. Moreover,
that interest is enhanced here by the site's
designation as a national historic landmark.

In an attempt to blunt the force of this conclusion,
the Knights argue that the regulation is not narrowly
tailored to the achievement of this aesthetic rationale.
They make three points: first, that it is not only
unattended structures that produce clutter; second,
that the Town should have pursued alternatives less
restrictive than a total ban; and third, that the créche
is aesthetically pleasing. The first two parts of this
argument are plainly misguided. The narrow tailoring
requirement "does not mandate a least restrictive
means analysis." Nat'l Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 744 (1st Cir. 1995). Thus, the
Town was "[not] required to implement or experiment
with other alternatives before finally choosing the
total ban." Globe Newspaper, 100 F.3d at 189 n.15.
The "narrow tailoring" requirement is satisfied as long
as the particular "regulation promotes a substantial
government interest that would be achieved less
effectively absent the regulation." Nat'l Amusements,
43 F.3d at 744.

Here, moreover, the regulation appears entirely
logical when one recalls that it was adopted amid a
concatenation of Establishment Clause concerns. See
Good News Club v. Milford Cent. Sch., 121 S. Ct.
2093, 2103 (2001) (stating that avoiding an
Establishment Clause violation may be a compelling
state interest justifying even content-based
restrictions on speech). The Town legitimately could
conclude that unattended displays were more likely to
present Establishment Clause issues than attended

lla
Opinion of the Appeals Court

ones because, for instance, a reasonable observer
might be confused as to the source of the message.‘
Cf. Capitol Sq., 515 U.S. at 778-79 (O'Connor, J.,
concurring). This is significant because the context of
a religious display is crucial in determining its
constitutionality. Compare County of Allegheny v.
ACLU, 492 U.S. 573, 621 (1989) (forbidding display of
a créche in a county courthouse), with Lynch v.
Donnelly, 465.-16- U.S. 668, 685 (1984) (permitting
inclusion of a créche in a municipality's outdoor
holiday display).

We note, too, that the Supreme Court has
explicitly indicated that a total ban on unattended
structures in a _ public forum would pass
constitutional muster. In Capitol Square, a majority of
the Justices (the plurality, plus Justices Souter and
Stevens) specifically agreed that "[the state] could ban
all unattended private displays" in a public forum. Id.
at 783 (Souter, J., concurring); accord id. at 761
(plurality opinion); id. at 803 (Stevens, J., dissenting).
Various decisions of the courts of appeals are to like
effect. E.g., Am. Jewish Cong. v. City of Beverly Hills,
90 F.3d 379, 384 (9th Cir. 1996) ("The city
constitutionally could ban all unattended private
displays in its parks."); Congregation Lubavitch v. City
of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991)
(similar); Lubavitch Chabad House, Inc. v. City of
Chicago, 917 F.2d 341, 347 (7th Cir. 1990) (similar).
Finding no reason why the case before us demands a
different outcome, we hold that the total ban on
unattended structures is both content-neutral and

4 Although the plurality opinion in Capitol Square proposed a per
se rule to the effect that the government may not violate the
Establishment Clause by providing a forum for private religious
expression, see Capitol Sq., 515 U.S. at 770, a majority of the
Justices rejected this limited abandonment of the endorsement
analysis. See id. at 787 (Souter, J., with whom O'Connor and
Breyer, JJ., joined, concurring); id. at 799 (Stevens, J.,
dissenting); id. at 817-18 (Ginsburg, J., dissenting).

-12a
Opinion of the Appeals Court

narrowly tailored to achieve a_ substantial
governmental interest. It is, therefore, constitutionally
permissible.

As to the Knights’ claim that the créche is
aesthetically pleasing, the Establishment Clause
makes clear. that the Town was bound to consider a
range of potential religious displays when it
envisioned the future of the Green. Thus, the
aesthetics of the créche, in the abstract, are
irrelevant: The Town rationally could have decided
that some of the requested displays, or the sheer
number of potential displays, would be inconsistent
with the aesthetic quality of the Green. Even if the
créche were more beautiful than all the others — a
matter on which we take no view — the Town was not
at liberty to allow the créche while at the same time
prohibiting other religious displays.

D. Alternative Avenues of Communication.

As a final matter, the regulation does not unduly
restrict the Knights’ free speech rights because they
have adequate alternative avenues of communication
available to them. See McGuire, 260 F.3d at 43; Globe
Newspaper, 100 F.3d at 186. The Knights remain free
to display the créche, either during the course of an
event on the Green or at any time on nearby private
property.5 To be sure, the Knights argue that these
are not adequate alternatives — an event would be too
transitory and placing the créche on private property
would not convey the same message. But the message
that they suggest is suppressed is that the créche
belongs "at the center of public life in the Town of
Lexington." This resupinate reasoning turns the
constitutional standard upside-down. Although the
Constitution protects private expressions of beliefs, it

5 The record shows that one of the two churches facing the Green
is willing to have the créche displayed on its front lawn for the
customary six-week interval.

13a
Opinion of the Appeals Court

does not authorize — and sometimes even forbids —
citizens' attempts to invoke public backing of their
beliefs. The Knights have no constitutional right to
communicate a message of public support for the
créche.

It is also notable that the créche is not completely
banned from the Green. Like any other ceremonial
display, it may appear on the Green in conjunction
with an active event for up to eight hours. The
Knights have not explained why such a display is
impractical, instead stating that the Town has no
right to dictate to them how they must express their
private beliefs. Yet the Town has issued no general
ukase regarding private religious observances; only
religious displays on a single strip of public land are
affected. In a forum of this kind, it has long been
established that government may impose reasonable
restrictions on the manner of speech. See, e.g.,
Capitol Sg., 515 U.S. at 761. In adopting the
regulation, the Town has done no more than exercise
its right to manage its property in the manner it
deems desirable without crossing the constitutional
line.

E. Consistency in Application.

The Knights’ next argument is that the amended
regulation has been applied so inconsistently that it
gives municipal officials unfettered discretion (and,
thus, violates the rule announced in Cox v. Louisiana,
379 U.S. 536 (1965)). In Cox, the Court struck down a
municipal ordinance prohibiting street parades and
meetings on the ground that the ordinance effectively
gave local officials unbridled discretion to permit some
demonstrations and disallow others. Id. at 557. The
case stands for the proposition that a neutral
ordinance may violate the First Amendment if it
invites uneven application.

To demonstrate that the regulation here at issue
has been enforced selectively, the Knights presented

l4a
Opinion of the Appeals Court
evidence of other unattended structures that have
been seen on the Green since the new regulation was
adopted, e.g., bleachers and a platform truck were left
on the Green prior to a Patriots’ Day celebration, and
a podium appeared on the Green some days prior to a
Memorial Day event.

The most obvious flaw in this construct is the lack
of any evidence that these structures were erected by
private parties. This gap is critical because the
regulation was never intended to apply to actions by
the Town itself. In fact, the text of the regulation, as
adopted by the Board, prohibits. "[p]lacement on the
Battle Green of any unattended structure by any
private party" (emphasis supplied). Even though these
last four words later were omitted from the printed
regulation through an apparent clerical error, it is
reasonable to interpret the regulation as applying only
to private parties. In fact, the entire subsection in
which the regulation resides (quoted in the Appendix)
is most plausibly read as applying only to private
conduct. For example, we do not believe that the
provision prohibiting "removal[{] or disturbance of any

. monument, statue, marker, animal or plant”
reasonably could be construed to prevent regular
maintenance, repair, replacement, or landscaping
done by the Town. Similarly, the prohibition on the
use of firearms is most sensibly understood as not
encompassing police officers acting in their official
capacity. Because the Town is exempt from the ban
on unattended structures on the Green, the Knights'
claim of selective enforcement fails for evidentiary
insufficiency.

IV. THE FREE EXERCISE CLAIM

The Free Exercise Clause also is made applicable
to the states (and, therefore, to municipalities)
through the Fourteenth Amendment. See Cantwell,
310 U.S. at 303. It provides that "Congress shall make
no law . . . prohibiting the free exercise [of religion] . .

WPT Ac oeaeeegrmrgt Me

Gert eaarre

15a
Opinion of the Appeals Court

." U.S. Const. Amend. I. In. interpreting this
language, the Supreme Court has recognized that the
exercise of religion sometimes may involve
"performance (or abstention from) physical acts," and
that the government may violate the right to free
exercise if it seeks "to ban such acts or abstentions
only when they are engaged in for religious reasons."
Employment Div., Dep't of Human Res. v. Smith, 494
U.S. 872, 877 (1990). Even so, "a law that is neutral
and of general applicability need not be justified by a
compelling governmental interest even if the law has
the incidental effect of burdening a particular
religious practice." Hialeah, 508 U.S. at 531.

The Knights' current reliance on this doctrine is
misplaced. As we already have determined, see supra
Part III(B), the ban on unattended structures is
content-neutral in every way. For the reasons
elaborated in our previous discussion, we are bound
to conclude that the regulation does not discriminate
against a particular religion or religious practice. See
Hennessy v. City of Melrose, 194 F.3d 237, 244 n.1
(1st Cir. 1999) (explaining that private beliefs do not
excuse a party from complying with a law of general
applicability). Hence, the Knights cannot rewardingly
invoke the Free Exercise Clause in their attack on the
regulation. ;

V. CONCLUSION.

We do not live in a utopian world, and the myriad
guarantees that the Constitution provides sometimes
can operate in tension with one another. So it is here:
the Establishment Clause pulls in the direction of
separating church and state, while the Free Exercise
Clause pushes in the direction of permitting the
unfettered expression of religious doctrine. In our
view, the Town has reconciled these competing
centrifugal and centripetal forces in a constitutionally
acceptable manner, holding the delicate balance
steady and true. Admittedly, its solution — the

16a
Opinion of the Appeals Court
banning of all unattended structures from the village
green — inhibits some speech, but the solution is
content-neutral, narrowly tailored to suppress no
more speech than necessary, and leaves open ample
alternative avenues of communication. No more is
exigible to withstand the intermediate level of scrutiny
that the First Amendment imposes here.

We need go no further. We hold that the Town's
ban on unattended structures on the Green is a
permissible "time, place, and manner" restriction that
operates without reference to the content of speech,
and that the aesthetic preservation of so historic a
landmark furnishes an appropriate basis for imposing
this narrowly tailored restriction in a public forum.
Because the challenged regulation leaves open many
other means. of communication for religious speech
and there is no competent evidence of selective
enforcement, we reject the Knights’ free speech claim.
On much the same analysis, we likewise reject the
Knights’ free exercise claim. Consequently, we hold
that the lower court did not err in granting summary
judgment for the defendants.

Affirmed.

Appendix

RULES AND SPECIFICATIONS REGULATING
THE USE OF THE BATTLE GREEN

The following rules and regulations have been
adopted in accordance with the General By-Law,
Article XXV, Section 225, "Protection of the Battle
Green", as amended. If these regulations or portions
thereof, conflict with the By-Law, the By-Law shall
take precedence.

1. DEFINITIONS

sea tihaee eaeetamaienenaineananda alaeaanie

17a
Opinion of the Appeals Court

a. "Audio device" means any radio, television set,
musical instrument, or other device that produces
noise.

b. "Disorderly conduct" means any action intended to
cause inconvenience, annoyance, or alarm, or
which recklessly creates a risk thereof; fighting,
threatening or violent behavior; unreasonable
noise; abusive language directed toward any
person present; wrestling in vicinity of others;
throwing of breakable objects; throwing of stones;
or spitting.

c. “Powerless flight" means any device used to carry
persons or objects through the air; for example,
sailplanes, gliders, balloons, body kites, hand
gliders.

d. "Public use limit" means the maximum number of
people or the amount, size, or type of equipment
permitted on the Battle Green at one time, as
established by the Board of Selectmen.

c. “Special event" means demonstrating, picketing,
speechmaking, marching, holding of vigils, and all
other similar forms of conduct which involve the
active communication or expression of opinions or
grievances, engaged in by one or more persons, the
conduct of which has the effect, intent or
propensity to draw a crowd or onlookers.

f. “Wet turf" shall mean any natural condition that
would make the Green vulnerable to excessive
damage by heavy wear or use; for example, heavy
rains, reseeding, drought conditions.

g. “Non-permit activities" shall mean activities that
may be engaged in without a permit issued by the
Board of Selectmen.

2. NON-PERMIT ACTIVITIES

Subject to the restrictions in these rules and
regulations, permits shall not be required for: ~

18a
Opinion of the Appeals Court

. Conduct that does not cause public inconvenience,
annoyance, or alarm.

. Picnicking restricted to benches only and to
groups of no more than five people. Picnicking on

the Green by bus tours or similar groups is
forbidden.

. The gathering of groups on the Battle Green for the
sole purpose of exploring and enjoying its history,
and which do not remain for more than four
hours.’ 7

. Playing of audio devices at a reasonable volume.

e. The playing of games that do not:

i. exceed three players; or -
ii. damage the Green's physical condition; or

iii. disturb or inconvenience those visiting the
Green for historic interest; or

iv. constitute any type of disorderly conduct.
3. PERMIT REQUIRED ACTIVITIES

. The purpose for requiring permits for certain
activities is to promote the use of the Battle Green
in a manner consistent with its nature and
history; to protect the Battle Green from harm; to
ensure adequate notice of the event so that
arrangements can be made to protect the public
health and safety and to minimize interference
with the event by the public.

. Permits are required for any of the following
activities, singly or in combination:

i. Any group activity reasonably likely to exceed
the public use limit established by the Board
of Selectmen.

ii. Special events, public meetings, assemblies,
gatherings, demonstrations, parades, and

19a
Opinion of the Appeals Court

other active public expressions of interest, not
to exceed eight hours in duration.

iii. Pageants, reenactments, regattas,
entertainments, or other as public spectator
attractions.

iv. Displays of a ceremonial nature in connection
with special events and limited in duration to
the period required for such events.

v. Use of public address system, electrical
lighting, or other electrical devices.

vi. Distribution of printed matter other than
commercial advertising.

vii. Possession of firearms if unloaded or packed
in such a way as to prevent their use

viii. Possession of explosives, as long as
individuals or groups conform to Federal,

State, and local laws governing such
possession.

ix. Use or possession of fireworks or firecrackers
4. IMPERMISSIBLE ACTIVITIES
The following activities are strictly prohibited:
a. Any group activity that exceeds the public use

limit established by the Board of Selectmen for the
Battle Green.

b. Possession, destruction, injury, defacement,
removal, or disturbance of any building, sign.
equipment, monument, statue, marker, anime! or
plant.

c. Distribution or display of commercial advertieing,
or soliciting of business; or any other commercial
transactions.

d. Remaining on the Battle Green for more than four
hours.

e. Abandonment of any vehicle or personal property.

ie me a

B

20a “
Opinion of the Appeals Court

Unreasonably loud operation of audio devices.

Delivery of any person or thing by parachute or
helicopter.

Powerless flight activities.
Begging.
Disorderly conduct. —

. Use of firearms.

Use of metal detecting device for personal use.

. Gambling of any form or operation of gambling

devices.

n. Picnicking except as provided in 2b.
o. Use of roller skates and skateboards.

p. Placement of the Battle Green of any unattended

structure.
5. PERMIT PROCESS

Application for permits to conduct activities on the
Battle Green, specified in 3, above, shall be filed
no later than two weeks prior to the requested
date. Late and/or incomplete applications will be
considered at the discretion of the Board of
Selectmen.

Permit applications shall include the following
information:

i. Name and phone number of a responsible
contact.

Date and time of event.

BE:

Nature of event.

iv. Expected number of participants, spectators,
and vehicles.

v. Duration of event.

c.

a.

b.

2la
Opinion of the Appeals Court

vi. Statement of equipment and facilities to be
used.

vii. Section of the Green desired.

The responsible party is to keep the permit, which
must be available for inspection upon request. The
responsible party may be required by the Board of
Selectmen, as a condition of issuing the permit, to
pay for detail police officers if the Board
determines that such officers are necessary for
public safety.

Permits are issued upon express condition the
Green is to be left in an orderly fashion.

Permits are non-transferable; and are only valid for
date and time specified.

A permit shall be revoked if a sanctioned event
engages in impermissible activities and may be
revoked if the permit group engaged in activities
that are not within the specification of the permit.

The Board of Selectmen may alter a request by
setting reasonable conditions and restrictions as
to duration and area occupied, as are necessary
for protection of the area and public use thereof.

. Wet turf conditions may supersede the use of a

granted permit at the discretion of the Board of
Selectmen to protect the condition of the Battle
Green.

6. GROUNDS FOR DENIAL OF PERMIT REQUEST

Prior applications for permit for conflicting
schedule has been made or will be granted.

Event presents a clear and present danger to
public health or safety.

Event is of such nature or duration that it cannot
reasonably be accommodated in the area applied
for; or the expected number of participants
exceeds the public use limit.

cere enenegne ~ mewn yen ert

22a
Opinion of the Appeals Court
d. Event will, in the opinion of the Board of
Selectmen, cause unacceptable interference with
use of the Green by the general public.

e. Event is requested for a date that conflicts with
official celebrations of the Town.

f. Event is more appropriately held at other available
Town facilities, such as recreational facilities.

Approved by the Board of Selectmen July 15, 1986
Amended July 24, 2000

N
S
‘

23a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 01-2460

KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,
Plaintiffs, Appellants,

Vv.

TOWN OF LEXINGTON ET AL.,
Defendants, Appellees.

JUDGMENT
Entered: November 29, 2001

This cause came to be heard on appeal from the.
United States District Court for the District of
Massachusetts, and was argued by counsel.

Upon consideration whereof, it is now here
ordered, adjudged and decreed as follows: The
judgment of the district court is affirmed.

By The Court
Janice O'Neil, acting clerk

BY: /s/
Appeals Attorney

24a

APPENDIX C

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

KNIGHTS OF COLUMBUS, COUNCIL )
#94, LEXINGTON, MASSACHUSETTS )}
and MICHAEL J. O'SULLIVAN,
INDIVIDUALLY AND AS GRAND
KNIGHT OF THE KNIGHTS OF
COLUMBUS, COUNCIL #94,
LEXINGTON, MASSACHUSETTS,
Plaintiffs,
Case No.
Vv. 00 cv 12360 NG
TOWN OF LEXINGTON, and JEANNE
K. KRIEGER, CHAIRMAN, and
CATHERINE M. D. ABBOTT,
ELIZABETH B. EDDISON, PETER D.
ENRICH, AND DAWN E. MCKENNA,
THE BOARD OF SELECTMEN OF
LEXINGTON, MASSACHUSETTS
Defendants.

me er re ee ee ee” eee” See eee” ee” ee” See See” See See See”

GERTNER, D.J.:
ORDER OF DISMISSAL

Before me is Magistrate Judge Dein's Report &
Recommendation On Cross-Motions For Summary
Judgment, dated August 7, 2001 ("Report"). I agree
with Judge Dein's recommendation that the plaintiff's
motion for summary judgment (Docket #43) be
DENIED and that the defendants’ motion for
summary judgment (Docket #40) be ALLOWED. I
hereby adopt the findings and conclusions of Judge
Dein detailed on page 1 through page 36, line 1 of
Judge Dein's Report. While I also agree with Judge
Dein's conclusion that the defendants have not

EPSILON LN SELMAN IN

EDIRNE aye

a a a ge re Ce aa

277 ORRIN Reo:

i
;
+‘
4
é
t
é

25a
Order of Dismissal by the District Court

violated plaintiffs' First Amendment Free Exercise
rights (as described on the remainder of page 36 of
the Report), I do so based on slightly different
reasoning than Judge Dein's, which I will detail
below.

I. FREE EXERCISE CLAUSE

In her Report, Judge Dein recommends a finding
that the questioned regulation did not implicate the
plaintiffs' Free Exercise rights because the regulation
did not place a substantial burden on the observation
of a central belief or practice of the plaintiffs.
However, as the plaintiffs pointed out in their
Objections to Judge Dein's Report, the Supreme Court
has discouraged courts from inquiring into whether
an asserted belief or practice is central to an
individual's religious faith in performing its Free
Exercise analysis. See Employment Div. Dept. Human
Resources of Oregon v. Smith, 494 U.S. 872, 886-887
(1990), citing Hernandez v. Commissioner, 490 U.S.
680, 699 (1989); Thomas v. Review Bd. Of Indiana
Employment Security Div., 450 U.S. 707, 716 (1981).

Nevertheless, even assuming for the purposes of
this analysis that the plaintiffs’ placing of the
unattended creche on the Green is a central practice
of the plaintiffs’ religious beliefs, the plaintiffs' Free
Exercise claim still fails. Under Smith, a neutral law
of general applicability prohibiting conduct does not
violate the Free Exercise Clause even if the regulation
burdens an individual's religious practice so long as
the law is not specifically directed at prohibiting that
religious practice. Employment Div. Dept. Human
Resources of Oregon v. Smith, 494 U.S. at 879-880.
See also Hennesev v. City of Melrose, 194 F.3d 237,
244 n.1 (1st Cir. 1999). Here, as Judge Dein describes
on pages 22-28 of her Report, no animus against
Christians or the message of the creche motivated the
passage of the questioned regulation. Furthermore,
the statute is generally applicable as it applies to all

26a
Order of Dismissal by the District Court

unattended structures on the Green that are not
associated with a live demonstration or activity.
Furthermore, the town has a legitimate aesthetic
interest in regulating the use of the Green. Thus,
regardless of the centrality of the religious practice,
the regulation does not violate the Free Exercise
rights of the plaintiffs because it is a neutral law of
general applicability under Smith.

Thus, for the reasons detailed in page 1 through
page 36, line 1 of Judge Dein's Report as well as the
reasons detailed above, I DENY the plaintiffs’ motion
for summary judgment (Docket #43) and GRANT
defendants motion for summary judgment (Docket
#40). The case is hereby DISMISSED.

SO ORDERED.
Dated: October/zjsic], 2001

Ls/

Nancy Gertner, U.S.D.J.

27a

APPENDIX D

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

KNIGHTS OF COLUMBUS, et al., )

IVIL ACTION

Plaintiffs, )C
Vv. ) NO. 00-12360-NG
)
TOWN OF LEXINGTON, et al., )
)
Defendants. )

REPORT AND RECOMMENDATION ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT

August 7, 2001
DEIN, U.S.M.J.

This matter is before the court on the parties’
cross-motions for summary judgment. At issue is the
constitutionality of regulations enacted by the
defendants, the Town of Lexington and its Board of
Selectmen (collectively, the “Board” or “Selectmen”),
which prohibit the placement of unattended
structures on the Battle Green at the Lexington
Common (the “Green”). The plaintiffs, the Knights of
Columbus and its Grand Knight (collectively, “Knights
of Columbus”), contend that the regulations violate
their rights of free speech and free exercise of religion
as protected by the First Amendment of the
Constitution of the United States since the
consequence of the regulations is to prohibit them
from displaying a créche (Nativity Scene) on the Green
to celebrate Christmas. The Board, on the other hand,
argues that the regulations are content-neutral and
are reasonable and enforceable restrictions on time,
place and manner of speech.

28a
Report and Recommendation of the Magistrate

For the reasons detailed herein, this court
recommends to the district judge to whom this case is
assigned that the plaintiffs’ motion for summary
judgment (Docket #43) be DENIED; and that the
defendants motion for summary judgment (Docket
#40) be ALLOWED.

PROCEDURAL BACKGROUND

On November 6, 2000, the Board amended existing
regulations and enacted new regulations, including
one which prohibits the “[p]lacement on the Battle
Green of any unattended structure.” As a result, the
plaintiffs’ request for a permit to display a créche was
denied, On November 21,2000, plaintiffs moved for a
preliminary injunction seeking an order that they be
allowed to display the créche during the period
December 3, 2000 to January 6, 2001. After briefing
and argument, on December 6, 2000, the District
Court (Gertner, J.) denied the motion and issued a
memorandum in which the court concluded “that
plaintiffs are unlikely to succeed on the merits of their
Complaint.” Knights of Columbus _v. Town _ of
Lexington, 124 F. Supp. 2d *°9, 122 (D. Mass. 2000).

Plaintiffs filed an emusrgency motion for a
preliminary injunction pending appeal. This motion
was denied by the First Circuit Court of Appeals
“essentially for the reasons set out by the district
court at greater length in its December 6, 2000
memorandum.” (First Circuit Court of Appeals No, 00-
2539, Order entered December 20, 2000). The Court
further ruled that “the preferred posture in which to
address the constitutional issues will be in an appeal
from the grant or denial of permanent injunctive
relief.” Id.

The plaintiffs then served interrogatories and a
document request, and sought to depose the five
named defendant members of the Board of Selectmen.
The Board responded with a motion for a protective
order seeking an order precluding any discovery on

RPL YR RR TIEN me re 08 g's Xm nse adeg nPucnests _ ~- .

a
é
f
=
&,

29a
Report and Recommendation of the Magistrate

the grounds that all relevant information had been
produced in connection with the motion for a
preliminary injunction (Docket #26). On March 27,
2001, this court issued a Memorandum of Decision
and Order allowing the motion in part and denying
the motion in part. Knights of Columbus v. Town of
Lexington, 138 F. Supp. 2d 136 (D. Mass. 2001).

The issue raised by the motion for a protective
order was what information could properly be
considered in determining the motives of the Board in
enacting the regulations. This court ruled that the
motives and thoughts of individual legislators are not
controlling on the issue of constitutionality of
legislation. See United States v. O’Brien, 391 U.S.
367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed. 2d 672
(1968) (“Inquiries into congressional motives or
purposes are a hazardous matter” and court will not
rely on statements made by individual legislators
since “[w]hat motivates one legislator to make a
speech about a statute is not necessarily what
motivates scores of others to enact it... .”). Moreover,
the doctrine of legislative immunity safeguards
legislators from having to testify regarding their
motives. See Miles-Un-Ltd., Inc. v. Town of New
Shoreham, 917 F. Supp. 91,99 (D.N.H. 1996), and
authorities cited; Acevedo-Garcia v. Vera-Monroig,
204 F.3d I, 8 (Ist Cir. 2000). As a result, courts rely on
“objective indicators of intent,” including the “face of
the statute, the effect of the statute, comparison to
prior law, facts surrounding enactment, the stated
purpose, and the record of proceedings.” City of Las
Vegas v. Foley, 747 F.2d 1294, 1297 (9t% Cir. 1984), as
quoted in Colacurcio v. City of Kent, 163 F.3d 545,
552 (9t Cir. 1998), cert. denied, 529 U.S. 1053, 120
S.Ct. 1553, 146 L.Ed. 2d 459 (2000). Put another way,
“[rjelevant evidence, includes, among other things, the
historical background of the decision under challenge,
the specific series of events leading to the enactment
or official policy in question, and the legislative or

30a
Report and Recommendation of the Magistrate

administrative history, including contemporaneous
statements made by members of the decisionmaking
body.” Church of The Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 540, 113 S.Ct. 22 17, 2230-
31, 124 L.Ed.2d. 472 (1993) (citations omitted).
However, such statements we relevant only “if they
show objective manifestations of an illicit purpose,
such as a departure of from normal procedures or a
sudden change in policy” Colacurcio, 143 F.3d at 552.

Based: on this standard, this court limited the
discovery to which the Board had to respond and
precluded the deposition of the individual Selectmen
The plaintiffs were invited to seek additional discovery
based on a specific showing of need, but they never
did so. The plaintiffs did move for reconsideration of
this court’s ruling, which motion was denied. (Docket
#36, 39).

The parties filed cross-motions for summary
judgment on May 22, 2001 and filings were completed
on June 20, 2001. Oral argument was heard on July
2, 2001. Although plaintiffs have not filed any motion
to strike, they do object to this court’s consideration
of “statements of opinion by the defendants” and
“claims as to the motivations of the members of the
Board of Selectmen contained in the defendants’

statement.” Plaintiffs’ Opposition to Defendants’

Cross-Motion for Summary Judgment (“Plaintiffs’
Opp.”) (Docket #49) at pp. 2, 3. As evidenced by the

following statement of undisputed facts, this court
remains guided by the above-stated principles in
determining the relevant issues of motive and intent.!

1 Despite the plaintiffs’ objections to the inclusion of some
material in the record, all parties agree that the material facts are
not in dispute.

LLL GELS, STERIC RE AIRY PRM 8a

pte een inter

LIER k

ar HERESY LEE AISLES DALI

3la
Report and Recommendation of the Magistrate

UNDISPUTED MATERIAL FACTS

The first battle of the Revolutionary War occurred on
April 19, 1775 at what is now known as the Lexington
Battle Green. Affidavit of Peter Enrich (“Enrich Aff.“)
(included in Docket #42) at 94. Seven of the eight
minutemen killed during the battle are buried on the
Green and the famous Minuteman Statue is located at
the apex of the Green. Id. The Minuteman Statue
commemorates the efforts of the American colonists
who fought in the Revolutionary War. Id.? The Battle
Green is a registered National Historic Landmark and
is also listed in the Massachusetts State Register of
Historic Places. Id. at 45.

Regulation of the Battle Green

Pursuant to the General By-Laws of the Town of
Lexington, the Board of Selectmen is entrusted with
the protection of the Battle Green, and the Board is
authorized to promulgate regulations governing the
use of the Green. Id. at ¥6 and Ex. A. The most recent
“Rules and Specifications Regulating the Use of the
Battle Green” were adopted by the Board on July 15,
1986 (id. at Ex. C) and amended on July 24, 2000 (id.
at Ex. B). They are divided into three categories:
activities which can take place without a permit
(“non-permit activities”), activities for which permits
are required (“permit required activities”), and
activities which are strictly prohibited (“impermissible
activities”). Id. at Exs. B & C at 92, 3, 4. The 2000
Regulations also added rules regarding the “permit

2 The plaintiffs refer to the use of the Green prior to the
Revolutionary War and describe it as a “center of spiritual
activity.” Although this court has no reason to disbelieve these
a poe, are not ee by the record. See

Judgment (Plaintifis’ Mem.") (Docket #44) at p.-3, 49. In any
event, these facts are not material, and the parties agree that the
Green has special historic significance. aN

32a
Report and Recommendation of the Magistrate

process” and “grounds for denial of a permit.” Id. at
Ex. B at 995, 6. The rationale for requiring permits
has remained unchanged. Thus, the 1986 and 2000
Regulations provide:

The purpose for requiring permits for certain
activities is to promote the use of the Battle
Green in a manner consistent with its nature
and history; to protect the Battle Green from
harm; to ensure adequate notice of the event
so that arrangements can be made to protect
the public health and safety and to minimize
interference with the event by the public.

Id. at Exs. B and C at 43a.

The following chart details (and is marked to show)
the relevant changes to the Regulations regarding
activities which require a permit:

1986 Regulations (Ex. C) | 2000 Regulations (Ex. B)

1. Any group activity i. No change.
reasonably likely to exceed
the public use limit
established by the Board of
Selectmen.

2. Special event,3 public |
meetings, assemblies,
gatherings, demonstrations,

ii. Special events, public
meetings, assemblies,
gatherings, demonstrations,

parades and other public parades and other active
expression of opinion. public expressions of
: ;
ro occa ind ~~

3 “Special event” is expressly defined in both sets of Regulations as
“demonstrating, picketing, speechmaking, marching, holding of
vigils, and all other similar forms of conduct which involve
communication or expression of opinions or grievances, engaged
in by one or more persons, the conduct of which has the effect,
intent, or propensity to draw a crowd of onlookers.” jd, at Exs. B
and C, at fle.

d. Remaining on the Battle Green for more thew
four hours.

e. Abandonment of any wehicle or personal
property.

34a
Report and Recommendation of the Magistrate

Services, Peace vigils, protests over the
impeachment of President Clinton, re-
enlistment ceremonies, interfaith services,
protests over the exclusion of the créche, and
of the annual reenactment of the Batik of
Lexington and Concord.

Defendants’ Response to Request No, 17 (Plaintiffs’
Ex. Q).4 “In a typical year, events on the Green
include religious’ services, fairs, re-enactments,
celebrations, and rallies.” Knights of Columbus, 124
F.Supp.2d at 121. These uses have continued
following the adoption of the 2000 Regulations. For
example, “[i]Jn the recent past, the Green has been
used for Easter Sunrise Services, weddings, a prayer
rally for the National Day of Prayer, a demonstration
against commercial flights at Hanscom Air Force
Base, a rally in support of the labor strike at Raytheon
Corporation, and for a variety of other events.” Enrich
Aff. at 99. In April 2001, the annual Patriots Day
celebration, including the reenactment of the Battle of
Lexington, was held on the Green, as were rehearsals
for the event. See Third affidavit of Peter D. Enrich
(“Third Enrich Aff.”) (Docket #47) at 991-2, Ex. A. The
annual Memorial Day ceremony was held on the
Battle Green on May 28, 2001. Second Affidavit of
Jeanne Kreiger (“Second Kreiger Aff.”) (Docket #52) at
q{1, 2. “It began with a prayer led by a chaplain from
Hanscorn Air Force Base, and also included a volley
by the Lexington Minutemen, a speech by Col.
McCarraher, a _ reading of the $Governor’s
Proclamation, a flag raising, a wreath laying, a
performance by a local band, and a closing prayer by
the chaplain.”5 Id. at 42. It is undisputed that, apart
from the créche, the Green has not regularly been the

4 “Plaintiffs’ Ex.” refers to the exhibits attached to Plaintiffs Mem.
(Docket #44).

5 More details about the podium and seating used in this and
other events will be discussed infra.

35a
Report and Recommendation of the Magistrate

site of unattended structures expressing information,
opinions or beliefs. See Enrich Aff. at 9 12; Plaintiffs’
Mem. at 1-2 (the only other unattended structures to
which plaintiffs refer are non-expressive items such
as flatbed trucks, bleachers and podiums).

History of the Créche on the Green

A créche has been placed on the Green each
Christmas season for much of the past eighty years,
beginning in the early 1900’s. Enrich Aff. at ¢ 10. For
several years, the créche was placed in a different

park in Town, and th -e was no display mound the ~

time of World War II. 'u. After the War, the Town was
effectively the owrer of the créche and was

responsible for its maintenance, erection and storage.
Id.

In 1973, an issue arose as to whether the Town
should be responsible for continuing to display the
créche and whether it should remain on the Green.
See id. at 911, Ex. D. At the Selectmen’s Meeting of
October 29, 1973, it was unanimously voted:

to grant permission to the Knights of
Columbus, Lexington Council No, 94, acting
alone or in concert with the Simon W.
Robinson Lodge, A.F. & A.M. to display the
créche on the Green during the annual
Christmas season, with the following
understanding: 4

1. That they assume the responsibility for the
erection, care, removal and storage of the
Créche.

2. That they install a plaque indicating that
the display is privately sponsored and
--identifying those sponsors.

Id. See also Plaintiffs’ Ex. E.

Since at least 1982, the Regulations for the use of
the Green would have required a permit for the

36a
Report and Recommendation of the Magistrate

display of the créche, Enrich Aff. at 412. From 1973
through the 1998 Christmas season, however, the

créche was displayed on the Green without prior
approval or permit. Id at 4912, 16.

The placement of the créche on the Battle Green
was-a matter of much controversy in the Town. The
plaintiffs cite to the statements of defendant Peter
Enrich at a meeting to summarize the objections to
the placement of the créche on the Green as being to
the display of a “majority religious symbol” that left
some residents feeling alienated and disenfranchised.
See Plaintiffs’ Mem. at p. 6,925. While this description
is not comprehensive, it does accurately reflect many
of the objections to the (semi) permanent display of a
religious symbol on the Green.

The minutes of the meeting of the Board of
Selectmen of November 2, 1998 report that Rev. Helen
Cohen of the First Parish Church and President of the
Lexington Clergy Association, had been invited to
attend the meeting and “to explain the efforts of the
Clergy Association to address on it common ground
the location of the créche on the Battle Green.” Enrich
Aff. at Ex. E; Plaintiffs’ Ex. F. According to Rev.
Cohen, the Clergy Association had worked on the
matter in 1972, and then, again, over the course of
the past 3 years. There were differing opinions “even
within the Clergy Association.” Id. A group had been
created, called “Meeting Ground,” to “explore options
and hopefully come up with something that will be
satisfactory to all people.” Id.6 The group consisted of
members of the clergy and other citizens with various
viewpoints. At the request of Rev. Cohen, the
Selectmen took no action on the issue of the location
of the créche and it was displayed on the Green

6 Although the plaintiffs state that “Meeting Gro nd” was
organized on September 27, 1999, they rely on the san.. minutes
as the defendants, and this seems to be a simple error. See
Plaintiffs’ Mem. at pp. 3-4, 44 15, 16.

RP RSER RIE: 6)

ae "

37a
Report and Recommendation of the Magistrate

during the 1998 Christmas season. Id.. See also

Enrich Aff. at 915.

A regular meeting of the Board of Selectmen was
held on September 27, 1999, Enrich Aff. at 917 & Ex.
F; Plaintiffs’ Ex. G. Rev. Cohen reported on the results
of the Meeting Ground group’s work. As reported, the

Committee, after much review, came to the
unanimous conclusion that private citizens do
have the right to have religious observances
and displays on the common land within
guidelines established by the town. The
Committee then focused on the duration of
the display on the Green and the hope that
the group could reach a decision; however,
Meeting Ground is unable at this time to
propose a specific time period that everyone
can live with.
Id. The Committee did, however, recommend that the
display be for a shorter period than in prior years, and
that it reconsider the matter again beginning In
February 2000. The owners of the créche, including
the Knights of Columbus, agreed to a shorter period of
three weeks. Id.

There was an open forum and comments from a
number of members of the audience. The minutes
describe these as “discussion and questions. . .
concerning the length of the display, religious
expression versus display of an ‘unattended
structure,’ whether the display is allowed or not under
the Constitution and use of another location in the
proximity of the Green.” Id. The Board continued the
matter for decision at the next meeting. Id. See also
Plaintiffs’ Ex. H, which includes the Meeting Ground’s
Proposal, which is incorporated in the-Board minutes,
and a newspaper article dated September 9, 1999
which reported that “[lJast year, calls for the removal
of the nativity scene from public grounds were

a

38a
Report and Recommendation of the Magistrate

highlighted by a December protest rally organized by
a group of Lexington High School students.”

After the meeting, the Board received “quite a bit
of mail and calls, more than on any other issue.”
Enrich Aff. at Ex. G (Board Minutes of October 18,
1999). One piece of correspondence from a Town
resident suggested that unless the Town was
prepared to approve every type of display imaginable,’
“[ajlternatively the Town could simply ban all
unattended displays on the Battle Green.” Id. at Ex.
L.6 Thus, the record does not support the plaintiffs’
contention that the possibility of competing structures
on the Green did not arise until it was clear that the
Selectmen intended to ban the créche. See Plaintiffs’
Mem, at 24. The possibility that the Green could be
transformed into a field of signs and structures arose
early on in the debate.

The créche was next discussed by the Selectmen
at their meeting of October 18, 1999. Id. at 418, Ex.
G.° There were public comments and then comments
from the Board. The Board members expressed their
personal concerns that the issue was divisive, that
regulations were not being followed, that “neither a

7 The writer suggested that such displays might include a
“depiction of human sacrifices,” “a commemoration of the Mayan
or Aztec religious festivals, which were oriented around blood-
letting,” or “a commemoration of the religious practices of the
Crusaders, which included the burning of entire communities of
Jews and the sacking of Christian Constantinople.” Another writer
suggested a statue of the late Flip Wilson and a herd of live cattle
to honor Hindus. Id, at Ex. L.

8 According to the writer, while putting up displays of their
opinions and “walk{ing] away is just too much,” “[i]f anyone cares
enough to stay up all night with their religious (or political)
displays for four weeks, maybe we should let them have that
opportunity. Id. at Ex. L.

9 Although the plaintiffs do not mention this meeting, the facts do
not seem to be in dispute.

39a
Report and Recommendation of the Magistrate

complete ban nor a status quo” was appropriate, that
the “créche is a symbol of peace but does not belong
on the Battle Green,” and that the créche “causes
displeasure and alienation and gives a message that it
has public endorsement.”!9 Id. at Ex. G. The Board
voted 4-1 to permit the placement of the créche for a
reduced 3 week period for the 1999/2000 Christmas
season, While not focally voted upon, the minutes
indicate that the matter was to be revisited for the
next season. Id.

Community Response

In response to the vote allowing the display of the
créche, on or about November 2, 1999, the Board
received a request for “a permit to erect a privately
owned temporary religious structure on the Battle
Green” from a group of residents calling themselves
“Citizens for the Protection of the Battle Green.” Id. at
Ex. H. The permit was for a 4 feet by 8 feet plywood
sign stating in part that the créche is a “privately
owned religious structure,” that it “does not represent
an ‘establishment of religion’ by the Tom of Lexington”
and that “[i]Jt is placed here in spite of the objections
of the Lexington citizens of many different faiths, who
believe that private, sectarian, religious displays are
inappropriate on public lands.” Id.

The permit request was discussed at the
Selectmen’s meeting of November 22, 1999, at which
time it was denied in the abseiice of a motion.
According to the minutes:

The Board discussed several points: the
request is far different as it is for a sign and

10 While in his affidavit Mr. Enrich seeks to expand upon his
grounds for opposing the créche (418), in the absence of any
transcript of the meetings, or statement of his thoughts in the
minutes, these personal, after the fact, comments will not be
considered in ruling on tie motion for summary judgment.

40a
Report and Recommendation of the Magistrate

not a structure, there is a clear distinction
between a Créche and signage; the sign being
requested would come under the Town’s
Zoning By-laws; there will be further dialogue
after this Christmas season encompassing a
wider range of citizen input; different
interpretations of the constitution; concern
that the proposed sign is an effort to
characterize a structure placed on the Battle
Green by another group and appears to be
adversarial, and the desire of the Board to
have the request withdrawn.

Id. at Ex. I.. Other permit requests were also
discussed, but no action was taken. Id.; Enrich Aff. at
q22. These permits were characterized as being fur
“privately owned religious objects and structures on
the Battle Green.” Enrich Aff. at Ex. J. One was for a
“witch, a skeleton, and a ghost” in honor of witchcraft,
“a recognized religious practice in Massachusetts
since the days of the Salem Trials.” The other was the
erection of a Pyramid to honor the Egyptian Sun God
Ra, which was proposed for April 2000. The
proponents of the permits noted that they

do NOT believe that actually granting these
permits is in the public interest. We do,
however, believe that if the Board of
Selectmen permit a créche to be placed on the
Battle Green, and then reject permits for
these displays, it constitutes Constitutional
grounds for legal action against the Board for
denial of equal protection, interference with
free speech, and establishment of one religion
in preference to another.

Id. Additional requests for approval of structures on
the Green came in from various members of the
community. For example, on November 4, 1999, there
was an inquiry about placing a Sukkah on the Green
during the period October 10-22,-2000. Id. at Ex. K. It

4la
Report and Recommendation of the Magistrate

was described as “an open structure that will measure
approximately 8’ wide by 14’ long by 8’ high,” it
celebrates the Jewish harvest festival of Sukkot, and
the applicant noted that “[iJn light of the Créche
decision and the support of the Selectmen for
diversity of expression on the Green, I do not suppose
that there will be any issue about approval for this
request.” Id. It was clear that the créche, if allowed to
remain on the Green, was no longer going to be the
only unattended expressive structure placed there.

The Meeting Ground group appeared at the
Selectmen’s meeting of July 10, 2000, but it did not
have any new recommendation for the Board to
consider. Id at Ex. M. In the context of discussion
about how to deal with the créche on the Battle
Green, the Selectmen voted 3-2 “to request that Town
Counsel review the Rules sued _ Regulations
concerning use of the Battle Green and strengthen
the regulations to prohibit the erection of unattended
structures on the Green.” Id. See Plaintiffs’ Ex. 1,
excerpts from transcript of meeting.!!

The next Board meeting was held on July 24,
2000. Id. at Ex. N. At that time, acting Town Counsel
reviewed the proposed changes to the Battle Green
Regulations, including prohibiting the placement of
any unattended structure on the Green by any private
party. Id. After discussion by the audience in favor of
and opposed to taking the créche off the Green, the
amendments to the Regulations were approved by a
vote of 4-1. Id. The modification of the Regulations was
described as “the culmination of a process initiated by
the Board nearly two years ago to bring closure to

11 In their affidavits, defendant Peter Enrich and, to a lesser
extent, Jeanne Kreiger detail the concerns of the Selectmen in
voting for the amendments to the Regulations. To the extent that
these opinions are not reflected in contemporaneous or historical
expressions of intent or fact, they will not be considered in
connection with ruling on the motions for summary judgment.

42a
Report and Recommendation of the Magistrate

whether—to the issue of whether to continue to
permit the placement of the créche on the Green.”
Plaintiffs’ Ex. J, p. 5. In connection with its vote, the
Board rejected a suggestion that permit applications
be considered on a case-by-case basis, or that the
content of an message be examined. Enrich Aff. at Ex.
O, pp. 120-22; Ex. P, pp. 123-24. Defendant Peter
Enrich’s contemporaneous statements are consistent
with the facts as presented by all parties to this
litigation with respect to the expressed motives and
intent of the Board in enacting the Regulations. As he
stated:

Mr. Enrich: I think the créche is clearly the
trigger for us facing a very complex and
difficult issue. The complex and difficult issue
goes to the heart of one of the responsibilities
of the Board of Selectmen, which is the
stewardship for the Green. It’s an important
responsibility. It’s a responsibility that we.
address in other respects, but this is probably
the most heated and difficult context that has
-- that is going to arise about it. And when
you confront that question, the question that
you confront is the question of: What is the
appropriate range of uses of the Green for
expression of private views? Those are private
views about religion, private views against
religion, private views of political candidates,
private views around a whole range of issues.
And to try to address one in isolation from the
others strikes me as something that would be
ill-considered.

When we confront it, and at least for me,
having grappled with this as hard as I know
how to grapple. with something and listened
as hard as I know how to and I think coming
to a fairly good understanding of the
perspectives of a pretty wide range of people,
I’m convinced of first, that there is not an

43a
Report and Recommendation of the Magistrate

Immediate strategy that we can pursue that
isn’t going to make some people very
unhappy. I think that’s inevitable and it’s
extremely unfortunate And I think we've
looked long and hard. We've asked others to
help us look long and hard. And I don’t think
there is such a strategy.

What I, personally, have concluded is the best
strategy is one that recognizes the right of
individuals and groups to use the Green for
displays of their opinions in the form of
events, of worship. services, of political
meetings, of marches, of vigils, of any sort of
activity like that. But to allow its use for
_groups to place a structure that stands there
for an extended period of time to represent
their views is problematic. It’s problematic in
that it sends some confusing messages about
who endorses’ those _ structures. It’s
problematic in that it is now beginning to
invite, via battles of competing structures
trying to deliver competing messages,
something that I think is just completely
contrary to what I think of as the proper
meaning of the Green.

And so I think that although it’s not a perfect
solution, it is an equitable, responsible
solution which draws the distinction and
says: Activities, events, we will permit broadly,
essentially, — universally; structures
representing the views of private groups we
will forbid universally and equitably. Is that
perfect? No, of course it’s not perfect.

Enrich Aff. at Ex. O, pp. 120-22.

Chairman Jeanne Kreiger shared this sentiment,
using language on which the Knights of Columbus
rely. As she stated at the meeting:

- 44a ,
Report and Recommendation of the Magistrate

The display of the créche on the Green has
been a matter of public debate for more than
two years. We've had discussions here in front
of the Board of Selectmen. There have been a
variety of formal and informal discussion .
groups by the clergy. There’s been discussions
in the Lexington Minuteman, through public
assembly, on local access TV and through the
TMMA e-mail list. These public discussions
have, in general, been fairly divisive, and in
some cases, quite destructive. Continued
public debate, in my opinion, will not lead to a
solution that will be satisfactory to all
Lexington residents.

The Board of Selectmen is acting on our
personal convictions and on what we, as
individuals, believe represents the perspective
of the majority of the citizens of Lexington. As
one caller said to me this weekend, “There are
many churchgoing Christians, many long-
time residents of Lexington, who recognize
: that times have changed and the display of
the créche on the Green is no longer
appropriate.”

I would hope that our discussions this
evening will focus on the recommended
changes -- the bylaw enhancements and the
appropriateness for invoking what we believe
to be the majority opinion of this Board and
the majority of the residents of Lexington.

Plaintiffs’ Ex. J at 7-8; Plaintiffs’ Mem. at p. 5, 420.

Events Fo e New Re tions

Following the enactment of the new regulations,
the Green continued to be used for active events and
expressions of opinion as_ described above.
Specifically, but without limitation, the Selectmen’s
minutes of September 25, 2000 reflect the approval of

a £108 OMT

45a
Report and Recommendation of the Magistrate

the use of the Green by the Lexington Minutemen for
change of command and installation of officers
ceremonies, and a rehearsal as before. Enrich Aff. at
Ex. Q. In addition, the Board approved 12 weeks of
rallies to be held on Wednesdays from 4:00-600 P.M.
protesting the exclusion of the créche from the Green.
Id., Enrich Aff. at 440.

On October 19, 2000, the plaintiff Michael
O’Sullivan, individually and on behalf of the Knights
of Columbus, requested a permit to erect a créche on
the Green. Enrich Aff. at Ex. R. He also stated that if
approval was not granted by October 30, 2000, he
would treat it as having been declined and commence
legal action. Id.

At the meeting held on October 30, 2000, the
application for a permit was not acted upon and was
considered constructively denied. Plaintiffs’ Mem. at
p. 6, 928; Plaintiffs’ Ex. N. At the meeting, defendant
Peter Enrich stated as follows:

Mr. Enrich: I do think that this is an
important point because I know that some
people have concluded that the Board’s
actions last summer were directed at a
specific religious expression. And I have had
people accuse me of being anti-Christian. And
nothing could be further from the truth. The
fact of the matter is that this, at least in my
mind, was intended as a completely neutral
attempt to address a problem of requests for
appropriate uses that came from a number of
directions.

And I, personally, am convinced that our
function, as a Board of Selectmen, is to
preserve the hallowed space of the Green.
This is a historic battlefield which we are
meant to protect and honor. And I don’t think —_
it’s an appropriate place for an endless

46a
Report and Recommendation of the Magistrate

barrage of privately sponsored displays
supporting either religious, political,
commercial or other viewpoints. | there

preserved for its proper uses.

One of those proper uses has been, and |
believe should continue to be, as a place for
expression, for speech, for assembly. And |!

it
would be extraordinarily ill-advised for us to
ever do so. But I think the decision to
structures for extended periods of time on the
Green is a very different matter and that it's
important that we stand by the decision we
made last summer.

Enrich Aff. at Ex. S, pp. 13-16. The Board invited the
applicant to submit an application consistent with the
regulations, such as a one day celebration of which a
créche or a structure was a part, but no subsequent
application was made. Enrich Aff, at 944, Ex. T, pp. 9-
10.

On December 12, 2000, a resident of Lexington
applied to the Board for permission to hold a “live”
nativity scene and service by Reverend DiLorenzo on
the Green on December 23, 2000 from 7:00 P.M. to
10:00 P.M. Supplemental Affidavit of Peter D. Enrich
(Docket #42) at Ex. A. The permit was approved by the
Board on December 18, 2000. Id. at Ex. B.

teh MH

i it

He | rene Hi HH 1
Hil : i ja pal
le il Tt Ni ial

48a
Report and Recommendation of the Magistrate

Regulations. Enrich Aff. at Ex. B, 93.iv. The “permit
process" added in July 2000 also states that permit
applications should include the ‘statement of
equipment and facilities to be used.” Id. at Ex. B,
q5(b)(vi). However, during discussion about the
proposed regulations, Mr. Enrich had stated “[j]ust to
clarify: If I’m understanding correctly, these ‘displays
of a ceremonial nature’ people should understand,
under the proposed regs, could only be there for the
period requisite fur the event. And an ‘event’ is, by
definition ‘no more than eight hours.’ My
understanding is that the intent of the language is
that if the structure had to be put up the night before
to be available for an event the next day: a stage for
Lex Fest, or a pulpit for the midnight service or
something like that, of course it could go up the night
before. That’s what the language is: the period
required fur such events. But beyond that, it would
not be permissible.” Plaintiffs’ Ex. J at 17 (transcript
of 7/24/00 meeting).

The First Amendment to the Constitution of the
United States provides as follows:

Congress shall make no laws respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peacefully to assemble, and to petition
the Government for a redress of grievances.

U.S. Const., Amend. I. These rights have been applied
to the States through the Fourteenth Amendment.
See Cantwell v. Connecticut, 310 U.S.-296, 303, 60
S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Plaintiffs’
challenge requires an analysis of two fundamental
freedoms protected by the First Amendment: freedom
of speech and freedom of religion. After careful
analysis, this court concludes- that the new

49a
Report and Recommendation of the Magistrate

Regulations enacted by the Board do not violate the
plaintiffs’ constitutionally protected rights.

A. Rights of Free Speech

It is undisputed that the Battle Green is a “public
forum,” the type

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1486%3A1. Public record. Not legal advice.