VERGENNES — Before Tuesday’s hearing on the display of religious and other scenes on city property, Vergennes aldermen published on the city’s website an introductory preamble, an initial policy, and a second policy that was amended after an initial round of feedback from citizens and consideration by city officials.
A third policy was then discussed on Tuesday evening at a meeting that drew about 140 people. Aldermen accepted testimony and then tabled the policy for discussion at their next meeting. The first policy referred to religious displays, but the second and third drafts simply refer to displays proposed by any group. That preamble and policy were largely prepared by Alderman Bill Benton with help from City Manager Mel Hawley. They read as follows:
The Supreme Court has never ruled that nativity scenes on public property are unconstitutional. To the contrary, nativity scenes are constitutional if displayed properly. In Alleghany v. ACLU, the Supreme Court made it clear that each case is fact specific. The key question that must be determined is:
“Would a reasonable observer of the challenged display in its particular factual context perceive a message of governmental endorsement or sponsorship of religion?”
The observer must be made aware of the history and context of the community and the forum in which the religious display appears. The primary issue lies in the ownership and sponsorship of the display: there are publicly-sponsored and privately sponsored displays on public property.
Both of these displays can be constitutional. The public-sponsored display must include some form of secular display and cannot endorse a religious faith but recognize the display as a form of cultural diversity. In this instance, the secular aspects of Christmas and its role as a national holiday, not a religious holy day, must be emphasized in a display of religious symbols, if it is not to be considered a violation of the establishment clause. In addition, the proximity of the symbols is important. The secular and religious displays must be within the same parameter of view.
The privately-sponsored nativity scene must be erected and maintained by private citizens instead of public officials. Privately sponsored displays are common in public parks where citizens are allowed to engage in expressive activity. In Capital Square Review and Advisory Board v. Pinette, the court ruled that the public park had been historically open to the public for a variety of expressive activities. To prohibit religious expression in the public park would violate the Free Speech Clause of the Constitution.
In order for a privately-sponsored display to meet the requirements as set forth by the court, the display must clearly designate that the display is privately-sponsored and a disclaimer should be erected that states that the municipality does not endorse nor oppose the display. In addition, any group sponsoring a display must request permission through a consistent application process on the same terms required of other private groups.
This policy will require tolerance on the part of the populace. This is an inclusionary policy and is in the best interest of the community. If all parties can respect the policy and accept it as a reasonable solution, the policy should serve the City for an extended period of time.
POLICY FOR DISPLAYS ON CITY GREEN
The City of Vergennes is a municipality incorporated in the State of Vermont that recognizes the cultural diversity of its inhabitants. The City of Vergennes, upon application, allows private or public organizations or individuals to use the City Green for public expression. The City of Vergennes also recognizes the cultural, social and economic benefits of public gatherings on the City Green.
The City of Vergennes does not endorse, support nor oppose any gathering or expression. The City will post signs stating as follows:
All events and displays on the City Green must be scheduled by the City Clerk.
All displays must have a sign identifying its sponsor.
The City of Vergennes does not endorse nor oppose any authorized display.
The City Council hereby adopts the following policy relating to displays on the City Green.
1. An application must be filed with the City Clerk annually with the name and address of the private sponsor of the display. The application will describe the display, the requested location on the City Green and include the dates that the display is proposed to be erected and removed. This description and the location of the display can remain on file for recurring displays.
2. The applicant shall provide a photograph of the display or a sketch of the display with the approximate dimensions and the predominant materials that the display of which it is constructed.
3. The applicant will furnish and post a clear sign that will be attached to the display or in close proximity to the display, signifying its owner or sponsor.
4. Displays shall not have a footprint of greater than 200 square feet and no structure shall be greater than 10 feet in height.
5. Due to other scheduled events on the City Green, displays are allowed by application with the City Clerk for the period October 15 to March 15. Requests outside of the aforementioned period require approval of the City Council.
6. No display shall remain in place longer than 60 days.