Danny Moloshok / REUTERS Ruben Lucas, 2, of Australia, and his great-grandmother Dot Brown look at a nativity-scene display at Palisades Park in Santa Monica, Calif., on Dec. 12, 2011

Thanksgiving ushers in a season of holiday spirit, department-store sales — and legal fights over Nativity scenes on public property. This year, opponents of these Christian displays have scored a victory: a federal judge upheld the decision of Santa Monica, Calif., to ban Nativity scenes on city-owned property. These battles have raged for decades, but the fight in Santa Monica is different. And it suggests why, in the years ahead, this issue may finally be put to rest.

The usual pattern for these fights has been for the ACLU or a similar group to sue whenever a scene of Christ’s birth goes up, with the argument that it violates the First Amendment ban on government support for religion. The court then looks at the display and tries to decide if it was put up mainly for a religious purpose or mainly for a secular purpose. In the Santa Monica case, however, critics tried a new tactic. Instead of asking a court to take down the Nativity scenes, located in Palisades Park, they asked for the right to set up their own displays on the same public property. Instead of arguing for censorship, they argued that they deserved equal free-speech rights.

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The man who introduced this approach is Damon Vix, a self-proclaimed atheist. Three years ago, Vix asked the city government to let him put up an antireligious display in the park alongside the Nativity scenes. Vix’s display included a quotation from Thomas Jefferson: “Religions are all alike — founded upon fables and mythologies.” Last year, Vix took it up a notch, encouraging other atheists and non-Christians to apply for their own displays.

He may not have won any points for good holiday cheer, but it was a smart legal move. The Supreme Court has ruled that when the government opens up public property to private citizens — when it creates a public forum for speech — it cannot discriminate in favor of some viewpoints and against others. A city policy saying Christian displays were allowed on public property but anti-Christian ones were not would violate the First Amendment. To make sure it was acting legally, Santa Monica decided last year to hold a lottery for anyone who wanted to put up an end-of-year display in the park.

That did not work out well for supporters of Nativity scenes. Atheists won 18 of the 21 available spaces in the lottery, while a Jewish entrant won one spot and the Nativity scene — which had previously taken up 14 spaces — was left with just two. When the displays went up, vandals tore down an atheist banner. This year, to avoid the effort and cost of running the lottery and dealing with the fallout, the Santa Monica city council simply decided to ban all private, unattended displays in city parks.

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A coalition of churches challenged the new policy as a violation of their religious rights. But on Nov. 19, U.S. District Court Judge Audrey Collins ruled in favor of the city, saying it had the right to institute an across-the-board ban. That ruling is clearly right on the law: the government does not have to let private citizens put up displays on public property, so long as it bans everyone equally.

This tactic of fighting Nativity scenes by demanding equal access seems to be growing. Last year, the Wisconsin-based Freedom from Religion Foundation encouraged its 17,000 members to put up antireligious displays next to Nativity scenes on public property. The group got a sign posted near a Nativity scene on the courthouse lawn in Athens, Texas, that said, “There are no gods, no devils, no angels, no heaven and no hell.”

“There is a growing secular movement who wants to be vocal,” Vix told KABC last year. “We’re happy about what we believe, and we believe we have an equal say, and we’re going to say it.” Demographics bear this out: polls show that even though the U.S. remains an overwhelmingly Christian country, the fastest-growing “religious” group is people with no religion. A Pew survey this year found that nonreligious people comprise 20% of the population and one-third of adults under age 30.

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Does this mean Nativity scenes are on the way out — something many Americans would be sad to see? It shouldn’t. There is a whole lot of private land in the country owned by people who would be happy to host a Nativity scene. This includes churches (Santa Monica alone has more than 50 of them). The future may not be banning Nativity scenes in public during the holiday season but privatizing them.

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