Grinch thwarted in San Diego

A major Southern California concert venue changed course Monday, deciding to allow a San Diego church to lease its popular outdoor auditorium for its annual Christmas production after a warning shot from a Texas-based religious liberty law firm.

In May, Awaken Church Pastor Jurgen Matthesius thought the facility was on board with the church’s request. A church staff member contacted the office of the San Diego Symphony Orchestra Association and was given assurances that the church could utilize the Rady Shell—an outdoor venue on San Diego Bay that opened last summer—for its Night of Christmas production. The shell is leased and operated by the San Diego Symphony. The church waited for the paperwork, but it never came. When a symphony representative did finally respond, he told the church that the shell could not be rented to “religious organizations.”

That Grinch-like refusal was not only disappointing for the church but also unconstitutional, said First Liberty Institute’s Jordan Pratt, who represents the church. Pratt’s Aug. 3 letter to the symphony accuses the organization of violating Title II of the federal Civil Rights Act that bars public accommodations from discriminating on the basis of religion. It also cites a similar California law, the Unruh Civil Rights Act, which applies to all business establishments and forbids refusals to “contract with … any person in this state on account of” religion.

“It’s very rare, I think, to have a case where you have in writing an express admission of a very broad type of discrimination that’s based on something clearly protected by both federal and state law,” Pratt told me. 

A now-discarded Supreme Court test for whether the government was violating the First Amendment’s establishment clause resulted in decades of discriminatory rulings against religion. That test, announced in the court’s 1971 ruling in Lemon v. Kurtzman, asked whether governmental action has the effect of advancing religion. Not surprisingly, it resulted in decisions that worked to empty the public square of religious content. At the same time, it fostered broader negative views about the public expression of religious beliefs.

Some of the legal hostility may be over, Pratt told me, as a result of the court’s June ruling in Kennedy v. Bremerton School District upholding high school football coach Joe Kennedy’s postgame, midfield prayer. As a result, future rulings will look to history and tradition to determine if governmental actions—like memorial crosses, crèches on public property, or hosting religious productions—violate the establishment clause.

Unlike Coach Kennedy’s case, the symphony is a private entity not subject to the First Amendment, yet in his letter Pratt suggested broader legal action could have been warranted, sweeping in the San Diego Unified Port District, a governmental entity that leased the venue to the symphony and approved its operations plan. The change of heart by symphony officials avoids that battle.

For most drought-baked Californians, August is a bit too soon to be thinking about Christmas, much less controversies over Christmas. Yet each year brings a bumper crop of the usual brush-ups over Nativity displays, school Christmas celebrations, and other public offerings. Both Pratt and Matthesius are thankful that the church’s Night of Christmas will not join that list.

In a statement Monday, Matthesius commended symphony officials’ change of heart. “We are overjoyed that the Rady Shell has opened its doors to us,” Matthesius said. “We are hopeful that we can find a date that works for everyone and look forward to inviting the community to experience the joy of Christmas.”