THOMAS MORE SOCIETY

A National Public Interest Law Firm

November 20, 2012 By Fedex Delivery (w/ enclosure) Mr. Steven Scholten Executive Director, Arlington Parks 410 North Arlington Heights Road Arlington Heights, IL 60004 Mr. Myles Naughton, Vice-President Arlington Heights, Park District c/o 410 North Arlington Heights Road Arlington Heights, IL 60004 Mr. Robert Smith, Commissioner Arlington Heights, Park District c/o 410 North Arlington Heights Road Arlington Heights, IL 60004 Ms. Maryfran H. Leno, President Arlington Heights, Park District c/o 410 North Arlington Heights Road Arlington Heights, IL 60004 Mr. Robert Nesvacil, Commissioner Arlington Heights, Park District c/o 410 North Arlington Heights Road Arlington Heights, IL 60004 Mr. Robert Whisler, Commissioner Arlington Heights, Park District c/o 410 North Arlington Heights Road Arlington Heights, IL 60004

RE: Denial of Permit for Christmas Nativity Display at 2012/2013 North School Park Holiday Display in the Village of Arlington Heights_-- Nov. through Jan. 6th Dear Mr. Scholten, Ms. Leno, Mr. Naughton, and Commissioners: We are counsel to Mr. Jim Finnegan, chairman, and the Illinois Nativity Scene Committee, whose members are aggrieved by recent advice from Mr. Scholten that the Arlington Heights Park Board had rejected the Committees application to display a privately sponsored, privately funded Nativity Scene in Arlington Heights North Park, adjacent to the Villages 2012/2013 Holiday Display. We understand that since 1991 the Holiday Display has been celebrated at North School Park, at Eastman Street and Arlington Heights Road, featuring over 70,000 tiny lights, a decorated evergreen on the Parks fountain, lit up streetscape trees, and a number of display pieces carrying out a childrens toy theme, including: large garland bear; sleigh; airplane; two soldiers; train; ice skaters; arches; dreidels; a large wreath; frosty; and a spinning bear. While the display is supervised by the Park Board, we gather as well that the Village also participates in the installation, funding, and sponsorship of one of more of the displays. Thus were also sending copies of this letter to the Mayor/President, Village Manager, Village Attorney, and Village Trustees. With respect, we must quarrel with your decision to reject what was a timely, genuine, and fully legitimate request to include a Nativity Scene, a constitutionally protected private expression of religious belief, among the many other planned Christmas-themed displays in this public celebration of the holiday season. Clearly, as the courts have repeatedly held, from time immemorial our streets and parks have been regarded as traditional public fora in which citizens may exercise their rights of free speech, and of course, religious expression counts as much as any secular form of expression as fully protected free speech. This principle, if ever in doubt, was securely established here some 23 years ago when
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Chief Judge James B. Parsons of the U.S. District Court in Chicago held in Grutzmacher v. Public Bldg. Commn, 700 F. Supp. 1497, 1988 U.S. Dist. LEXIS 13251 (11/23/88), that religious expressive conduct in a traditional public forum enjoys the same protections afforded political, artistic, or other types of protected speech under the First Amendment. *** Therefore, the responsibility of the Executive Director and the members of the Commission is to administer this public forum without discrimination against any who would use it regardless of their religion or regardless of their abstention from religion. This is a basic responsibility they must perform. Incidentally, it may never be properly performed by saying to any one type of user as against the other, It is easier for us to administer the citys properties if no religionists come aboard. We would prefer not to have religionists of any type aboard our Daley Plaza. What a revolting and ridiculous position to be taken here in the United States of America and presumably under the mandate of our Constitution. (Exh. A to the enclosed draft complaint, pp. 6-7; emphasis supplied). Chief Judge Parsons then entered a preliminary injunction, barring the Public Building Commission from excluding from Daley Plaza either Grutzmacher, with his Nativity Display, or coplaintiff Lubavitch Chabad, with its Menorah Display, or any other religious applicants, without discrimination and without regard to the content of their expressions, religious or otherwise, etc. Thereafter, on December 15, 1989, the Chief Judge made this injunction permanent. Since that time, the Nativity Display has been permitted to appear annually at Christmas time on Daley Plaza, along with a Menorah, and more recently, an Islamic Crescent. Just several years ago, the Commission once again purported to block the public display of scenes from the movie, Nativity Story, which a vendor sought to exhibit as part of the city of Chicagos Christ Child Market, or as expressed in German, Christkindlmarket a holiday festival on the Plaza that has been renewed annually. A religious association then proposed to show scenes from the movie, and they retained us to prepare a federal complaint, a copy of which is enclosed, to secure their right to mount the display. But we never had to file or prosecute that complaint, for after we had the opportunity to discuss the matter with counsel for the city and the Public Building Commission, they withdrew their objection. Our client was permitted to fund, sponsor, and mount the display amidst the secular Christkindlmarket displays. And, of course, the Nativity Scene, sponsored by Jim Finnegan and his group, was also displayed next to the Christkindlmarket exhibits, in compliance with Chief Judge Parsons injunction. Similarly, we now request, with respect, that you reconsider your denial of our clients request for display of a privately sponsored, privately funded Nativity Scene in North Park next to or wholly apart from the Arlington Heights Holiday Display. Certainly, such a display could be fit into the amply spacious park area, equally as we fit the Nativity Story movie display and Chicago Nativity Scene into Daley Plaza along with Christkindlmarket. The Nativity Scene would also fit in thematically with the other displays, in the sense that all of them honor the holiday season, whose religious aspects cannot lawfully be discriminated against, as Chief Judge Parsons ruled, in deference to its purely secular (sleigh, frosty, etc.) aspects. Inclusion of dreidels, moreover, already injects the religious symbolism of Chanukah among the displays, and we can think of no legally defensible reason why the Nativity Scene, identified as privately sponsored and funded, should be barred. Indeed, you cannot delete Christ from Christmas.

We understand that the Park Holiday Display is scheduled to begin with a tree lighting this coming Friday. Thus time is of the essence, and we urge that you contact us right away as to whether your Board will reconsider and admit the Nativity Scene. At a minimum, the Nativity Scene should be displayed for a decent length of time leading up to Christmas Day, on December 25th. Next Tuesday, on November 27th, another client of ours, the Springfield Nativity Scene Committee (SNSC) will be unveiling the fifth annual Nativity Scene Display in the Rotunda of our Illinois State Capitol in Springfield, right next to the Governors Holiday Tree. We also enclose a flyer for that event. When we first petitioned the Secretary of State for permission to mount this Nativity Scene in the Rotunda, even the ACLU publicly confirmed that SNSC, another privately organized and funded entity, enjoyed every right under the First Amendment, to place a Nativity Scene there, at the very heart of our Illinois state government. That is because the Rotunda of our Illinois State Capitol also qualifies, equally as North Park in Arlington Heights, as a traditional public forum. We hope and trust that this matter may be resolved amicably, as well as promptly, in the true communal and peaceable spirit of the Christmas season. We look forward to hearing from you as soon as possible. Sincerely yours,

TB/scm cc: By Email Transmittal w/ enclosure Mayor Arlene J. Mulder (mayor@vah.com) Trustee Thomas W. Hayes (thayes@vah.com) Trustee Carol J. Blackwood (cblackw@vah.com) Trustee Norman Breyer (nbreyer@vah.com) Trustee Joseph C. Farwell (jfawell@vah.com) Trustee Thomas Glasgow (tglasgow@vah.com) Trustee Bert Rosenberg (brosenberg@vah.com) Trustee John Scaletta (jscaletta@vah.com) Trustee Mike Sidor (msidor@vah.com) By Fedex to the Village Hall w/ enclosure Mr. Bill Dixon, Village Manager Robin Ward, Esq., Assistant Village Attorney

Thomas Brejcha President & Chief Counsel