There is an interesting twist on the usual nativity litigation that comes with the season (for a prior column, click here and here). In Ohio, Jasen Dixon has been told to take down his Nativity scene. Dixon, who manages a nearby haunted house, took a unique approach to the standard Christmas display: it shows the holy family as zombies.
The display shows life-sized figures of zombies as well as a zombie baby Jesus.
Sycamore Township, outside Cincinnati, does not allow structures to be located in the front or the side yard to occupy more than 35 percent of the area. There is also a rule that a primary structure must be 3 feet from the street, and 6 feet from the house.
The regulation sets up a classic constitutional claim. Dixon is unaware of other nativity scenes being the subject of such an order. Indeed, I expect that this is a rule honored primarily in the breach and that most people have no idea of the rule and assume that they are free to use their whole yard and house for a display. If correct, this is a selective prosecution targeting an individual for the content of his display or speech.
He was given until today to take down the display. I would sternly caution the city to reconsider before selectively moving against Dixon unless it has a documented history of consistent enforcement. (By the way, the law is in my view highly problematic. I am not sure of the public policy reason preventing a family from using half of their yard for a religious or non-religious display. Likewise, the rule of placing the display six feet from a home seems a bit unsupportable).
I expect that Dixon might have a viable free speech claim. If forced into litigation, the city would have to show that it polices holiday displays with this same bizarre rigor in measuring the percentage and distance issues. If so, the city clearly has more time and resources than most in this country.