Lawsuit Over Allegedly Discriminatory Denial of Permit to Display Nativity Scene in Park Can Go Forward

Nativity scene was allegedly excluded (ostensibly on COVID grounds) while a menorah lighting was allowed.

Thursday's decision by Judge Alvin Thompson (D. Conn.) in Knights of Columbus Council 2616 v. Town of Fairfield involved a challenge to the Town's refusal to allow the Knights to move their Christmas Vigil from one park where it had been held since 1983 (Town Hall Green) to another, apparently more prominent, park (Sherman Green):

The Christmas Vigil begins on December 23rd and ends on Christmas morning, December 25th. During the Christmas Vigil, "one or more members of the Knights is present with the Nativity scene at all times." The Nativity scene is composed of a "3-sided box, with small figurines of the Holy Family, angels, the magi (three kings), shepherds and livestock." "In addition to the Nativity scene, the Knights post a 4′ × 8′ sign with 6- inch letters stating that the Nativity scene is not endorsed by the Town of Fairfield and is sponsored by the Knights of Columbus."

The Knights allege that their 2020 request for the move was rejected, ostensibly on COVID grounds, but another group's menorah-lighting event was allowed. They also allege that, as to both the 2020 and 2021 requests, officials were really motivated by the content of the display and its potentially controversial nature; allegedly,

• The Parks Department Director wrote to the Knights, "[I]t would be my recommendation to the Parks and Recreation Commission not to approve your location change. That will still be my stance, I am not comfortable with putting this display on the Sherman Green given the backlash from residents about the Tree of Hope" and about various "patriotic displays."
• The Director also wrote to town officials, "The request [for the Christmas Vigil] is now to move to the Sherman Green. As you see my stance, I am not in favor of this move as I feel it stirs the pot. We have had many adamantly opposed to anything religious on the Sherman Green in recent months (even earlier today) I feel we should leave this display on the Town Hall Green as it has been there for 30 years without incident or complaint."
• The [Parks and Recreation Commission Chairman] wrote that "there are a few ceremonies that are taking place, that have taken place [at Sherman Green], … these are ceremonies that take place and then, everything is removed. I view the crèche more as a display that would be presented there more than a ceremony." He "acknowledged that 'that there was a ceremonial menorah lighting on the first eve of Hanukah on December 8th and one planned for the final night.'"
• Another Commissioner "was more explicit [than Nerreau], effectively raising an issue as to whether the Christmas Vigil was religious in nature."
• Later, the Commissioner "'… appear[ed] to have abandoned his 'display' vs. 'ceremony' … justification,' stating instead 'that he did not support the Christmas Vigil because it [lasted] too many hours' and took place overnight," but did not explain "'why the Commission permits other groups to leave signs … overnight on Sherman Green … but would require Plaintiffs to remove the Nativity and shut down the vigil at 8 p.m. on Christmas Eve.'"

The court allowed the Knights' claims to go forward, on the theory that Fairfield's procedures gave permitting officials too much discretion, and also on the theory that the discretion was applied here in a way that discriminated based on the religious nature of the speech (thus violating the Free Speech Clause), discriminated against a religious use (thus violating the Free Exercise Clause), and violated the Equal Protection Clause for similar reasons. An excerpt:

Taking the factual allegations in the Complaint as true, the plaintiffs have shown that the defendants' stated reason for denying their 2020 application, i.e. COVID-19 concerns, was pretextual. The plaintiffs have alleged that although Department staff told Sargent that the EPT directed the Department not to grant any "permits or events for the use of Sherman Green during the holiday season due to health concerns," the head of the EPT "denied that the EPT gave this direction to the Department. The plaintiffs have also alleged that despite the purported public health concern, a different group was approved to host a "large group gathering" on Sherman Green, that was held only four days after "Department Staff informed [Knights representative] Mr. Sargent that [Parks Director] Calabrese had denied the application to hold the Christmas Vigil on Sherman Green citing concerns about COVID-19.

Finally, the plaintiffs allege that Calabrese made remarks which demonstrate that his position on the plaintiffs' application was due to a concern about the subject matter of the Christmas Vigil, not COVID-19 [citing the remarks noted above]."