Off Limits

It's December. The malls are crowded, there's ice on the streets and, as always, the Denver City and County Building is lit up like a mosquito caught in an electric bug trap. In other words, according to lawyer and local Freedom From Religion Foundation activist Bob Tiernan, "'Tis the season to be protesting." But the foundation, which opposes the mixing of church and state, isn't taking any action regarding this year's version of the city's annual holiday decorations. A Christmas present to Denver, perhaps? Hardly, responds Tiernan. The foundation has kept mum about Denver's Nativity 2000 because Tiernan is still in court dealing with last year's protest. And, he admits, "we may have been worn down from excessive protesting."

In November 1999, foundation member Julie Wells put a small sign on the steps of City Hall that read, in part, "no gods, no devils, no angels, nor heaven and hell." After the city removed the sign two days later, Tiernan filed for an injunction in U.S. District Court, requesting that it be replaced. When the court rejected his request, Tiernan appealed. Oral arguments on the case are set for January 22 in Kansas City, one of the western cities where 10th Circuit Court cases are heard.

In his appeal, Tiernan argues that the steps of City Hall, and the sidewalk next to them, have traditionally served as a public forum and that many public activities have taken place there over the years. By prohibiting the sign, he says, the city is depriving Wells of her right to use that public space. The city agrees that the area is a public forum but counters with the argument that it's been unwritten Denver policy since the mid-1980s that public displays must be attended by some citizen at all times; the only exception was after the April 1999 Columbine massacre, when people left flowers and gifts unattended in front of the City and County Building. (That policy has since been written down, a direct result of the foundation protest.) Because the foundation doesn't have enough members to stay with a sign 24 hours a day, Tiernan had asked that Wells be allowed to put the sign inside the city's nativity scene -- which is exempt from the attendant rule (written or not). But a judge denied that request last December, determining that the property the creche stands on belongs to the city, making it a city-sanctioned display. (The same, presumably, goes for the commercial, rather than Christian, Santa's Workshop, which stands next to the nativity scene.)

But while Tiernan is giving the Baby Jesus a rest, he's not letting up on Denver officials.

Earlier this year, the Denver Police Department announced that it would begin honoring slain officers on the anniversaries of their deaths by placing an official memorial sign or plaque near the scene where an officer died. The signs are small, displaying just the police badge and the name of the officer. Bruce VanderJagt, who was shot to death on November 12, 1997, in an apartment complex near Monaco and Havana, was the first officer to be so honored. Donald DeBruno, who was shot and killed in December 1975, and Patrick Pollock, who was shot and killed in December 1986, were both commemorated in this way last week.

The memorials are perfectly legal. "It has been okayed through the city, and it has gone through the proper channels," says DPD spokeswoman Virginia Lopez. "That was one of the first steps in following through with an idea like this." In Colorado, many citizens erect unofficial memorials to the victims of car crashes and other kinds of violence, usually in the form of flower wreaths or crosses. But those memorials -- whether they contain religious symbols or not -- are illegal, and the Colorado Department of Transportation occasionally removes them. Tiernan is currently representing Rodney Lyle Scott, who took down one such memorial, a cross, and was charged with desecration of an object held in veneration by the public; in August, Scott pleaded not guilty in Adams County Court. Tiernan plans to argue that because CDOT sometimes removes the memorials, they can't be considered objects of veneration.

But in the meantime, he recently drove by the official VanderJagt memorial and noticed that someone had erected a large wooden cross beneath it. So Tiernan wrote a letter to Mayor Wellington Webb asking that the cross be removed. "The cross is located on the public right-of-way alongside the road," he wrote. "It is a clear violation of both the Federal and State Constitutions for the City and County of Denver."

Andrew Hudson, who speaks for Webb when he's not tooting his tuba, hasn't seen the memorial or Tiernan's letter, but he says the city does have a rule against signs in a public right-of-way, whether or not they are religious in nature. "As well-meant as this cross is meant to be, it is in violation if we assume it is in a public right-of-way and in the city and county of Denver," he says.

At least Hudson doesn't have to worry about Tiernan complaining about the creche this year. But the holiday display faces other threats. While the Keep the Lights Foundation (which was founded in 1985 when the city said it could no longer afford to pay for the display and relies on such corporate donors as KCNC-TV and Sturgeon Electric) will come up with the standard $35,000 needed to keep the lights on, it has yet to find enough cash to replace the beat-up-looking creche figures in the nativity scene -- Jesus, Mary, Joseph, some shepherds and a couple of wise men. That's right, a couple: The third wise man is in storage because of his fragile condition. (Maybe the mayor could stand in.)

Lynn Edwards, who represents Keep the Lights, says her group is still trying to raise the estimated $8,000 to $10,000 needed to replace the figures. But they'd better work fast: Many of them are more than twenty years old and showing their age, says John Hall, director of public buildings for the city.

And now, alas, they'll have to endure yet another cold season. "Unfortunately," says Hall, who plans to step down from his position in February, "I am going to retire before they do."


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