A lawyer for the Knights of Columbus, a Roman Catholic Church group that wants to sponsor the creche, vowed to appeal the ruling by U.S. District Judge Nancy Gertner that the new town ordinance banning the scene, featuring figurines portraying Mary, Joseph and a baby Jesus, did not violate anyone's constitutional rights.
Gertner's decision Wednesday denying the Knights' request for an injunction against the ban was a "suppression of religious speech," said attorney Chester Darling, who planned to ask the 1st U.S. Circuit Court of Appeals Thursday for an emergency hearing and ruling that would allow the display during the Christmas season.
Gertner said the new town ordinance was "content-neutral" because it prevented any religious or political group from putting "unattended structures" on the Battle Green for more than eight hours a day.
She noted that under a compromise offered by the Board of Selectmen, Christians would be allowed to display a creche on the Green during daylong services. She said the new restrictions were designed "primarily to protect the historic and aesthetic qualities of the Lexington Green."
Town selectmen approved the new ordinance this year because they had received numerous requests for special permits for other displays on the Green, including the Egyptian sun god Ra, cows to celebrate Hinduism and a statue of the late comedian Flip Wilson.
"The selectmen recognized that if they allowed the creche, they would also have to permit each of these other displays, to avoid endorsing any particular religion in violation of the First Amendment of the U.S. Constitution," Gertner ruled.
Darling said the decision undercut an 80-year tradition and he vowed to fight to keep the creche on the Green, where Minutemen battled British regulars at the start of the American Revolution on April 19, 1775. He said in Wednesday's Boston Globe that the Green "was sanctified by the blood of men who fell in the fight to exercise their religious freedom."
David L. Kaufman, who fought to deny a permit for the creche, said the dispute stemmed from a need to "separate church and state" and to acknowledge the changing "diversity" of Lexington.
He told the Boston Herald that the creche was "a remnant of a Lexington which existed 30-50 years ago when Lexington was a Christian community and had no minority population. Now it has many different ethnic and religious groups."
The town itself had maintained a creche on the public property from about 1920 to 1973, when it was taken over by the Knights and the Masons.
However, as the community and the state became less Christian, complaints grew over allowing a religious display on the Battle Green.
The U.S. Supreme Court has held that nativity scenes can be allowed on public property as long as they are part of an ecumenical display that does not promote only Christianity.
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