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24 St. Louis U. L.J. 237 (1979-1981)
Litigating a Nativity Scene Case

handle is hein.journals/stlulj24 and id is 263 raw text is: LITIGATING A NATIVITY SCENE CASE JONATHON B. CHASE* I. INTRODUCTION This is a story about litigating a nativity scene case,' but it does not begin there. One does not become casually involved in litigating a case arousing such high emotions and controversy. It is done deliberately and because the issues raised are considered impor- tant-not just legally important, in terms of the evolution of the establishment clause, but really important, in terms of how sensitive- ly people treat each other's deepest emotions and concerns. Contrary to what many believe, Citizens Concerned for Separa- tion of Church and State v. City and County of Denver was not brought to tear down a longstanding community tradition just for the sake of insisting on adherence to the pure letter of the law. It was brought to reassert what I consider to be a fundamental, ethical principle: people should not commit unnecessary actions that they have reason to know will cause others to feel substantial discomfort about something important to them. When conduct which trans- gresses that principle is engaged in by the government, there is more than the Golden Rule available as an admonition to desist. There is the United States Constitution. The establishment clause of the first amendment, made applicable to the states by the fourteenth, func- tions to protect individual religious sensibilities from just such an in- trusion. The equal protection clause performs a similar function with respect to other deeply felt emotions.2 *B.A., 1961, Williams College; LL.B., 1964, Columbia University School of Law; Professor of Law, University of Colorado School of Law. The author is presently one of the attorneys representing the plaintiffs in Citizens Concerned for Separation of Church and State v. City and County of Denver, 481 F. Supp. 522 (D. Colo. 1979). He wishes to express his gratitude to his friend and co-counsel, Daniel H. Israel, for his invaluable assistance in the litigation described herein and to his clients who have graciously permitted him to describe fully whatever aspects of the litigation he thinks to be of sufficient interest to share. 1. Citizens Concerned for Separation of Church and State v. City and County of Denver, 481 F. Supp. 522 (D. Colo. 1979), in which plaintiffs challenged the city and county of Denver's including a nativity scene as part of its annual holi- day lighting display. 2. In this respect the establishment clause provides greater protection than the equal protection clause. The former operates without regard to bad motive whereas the latter only guards against bad motive. Personnel Admin. v. Feeney, 443 U.S. 256, 99 S. Ct. 2282 (1979). The interesting question which remains about the equal protection clause is whether bad motive, alone, without disparate effect, is unconstitutional. For example, in Bauduit v. Weed, No. 75-1073 (10th Cir.

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