Delaware Nativity Scene Case

Christmas Tradition

For as long as anyone can remember, reportedly since the 1930s, a free-standing crèche, or nativity, has been part of the Christmas holiday tradition on the town circle in Rehoboth Beach, Delaware. Most recently and for many years the crèche was owned and placed by a local public service club. Other yearly holiday displays on-site include a Christmas tree, holiday lights, and light displays, and a large Santa’s House on the Boardwalk erected, owned and displayed by the local Chamber of Commerce.

The creche’s traditional location is on the town circle but because of construction was temporarily moved to an alternate location, until last year, when Saint Edmond Church, supported by the Star of the Sea Council 7297 (the Rehoboth Beach Council of the Knights of Columbus) asked the City for permission to place the crèche back on the town circle for the 2018 holiday season. Understanding it had permission, KOC placed the crèche on a small grassy area on the circle.

Nativity Banned

The next day the City called the Church and ordered the crèche removed.

This decision proved unpopular with many Rehoboth Beach residents, but city officials maintained the ban on the nativity. The City consistently made clear the crèche could not be on public property because of its religious nature.

This November, during a television interview about the crèche, Rehoboth Beach Mayor Paul Kuhns again reiterated the City’s anti-religion animus, saying the “city policy is not to have religious displays [like the crèche] on public property or city property.” Star of the Sea Council asked the City if they could at least place a crèche on the Boardwalk near the town circle, like the Chamber of Commerce is allowed to do with its Santa’s House.

But a city official responded that the Boardwalk is public property, and reiterated that city policy prohibits the crèche from placement on the Boardwalk or any other public property because it is religious.

The city policy comes despite long-standing U.S. Supreme Court opinions that even government-sponsored creches are lawful in holiday displays with secular and religious components and that religious discrimination is unlawful.

First Liberty, on behalf of the Star of the Sea Council 7297 sent a letter to the City urging officials to change their policy to align with the Supreme Court and allow the nativity, but the City didn’t act.

So in June of 2020, on behalf of the local Knights of Columbus council, First Liberty Institute, Jones Day, and Morton, Valihura & Zerbato, LLC, filed a federal lawsuit against the City, claiming religious discrimination for the town’s blanket ban of a Knights of Columbus crèche, or Nativity, from city property.  Later, in November 2020, First Liberty asked the court to prohibit the City from enforcing its ban on displays until a decision has been made in the case.

In November 2020, the city adopted a policy prohibiting all private holiday displays, religious and secular, on public property.  First Liberty argued, however, that the new policy was unconstitutional under the First Amendment.  In December the city again revised its policy and also added a city-owned crèche to its multi-faceted holiday display on the bandstand.

In April, a settlement was reached with the City after officials agreed to display a large free-standing crèche, or Nativity scene, as part of its holiday display at the city bandstand for the next two Christmas seasons.  The City also agreed not to unreasonably withhold approval of attended holiday displays by the Knights.

“This is cause for celebration,” said Roger Byron, Senior Counsel for First Liberty Institute.  “A free-standing crèche is once again part of the community’s holiday display.  The Knights of Columbus is pleased to have helped bring about such an outstanding result.”