Several days after county administrators released documents that showed Simon's declaration that the nativity scene ran "afoul of constitutionally permitted displays," county parks workers told media and county executives with offices in the Old County Courthouse, 115 N. Church Ave., that the figures had deteriorated too much for display.
The pieces, crafted in Italy, were improperly stored and allowed to get wet. Some have broken features. They have been replaced by several decorated trees on the south lawn, and a desert winter scene that features snow-capped Catalina Mountains and saguaros, deer, bunnies and a desert tortoise, on the northwest corner of the courtyard.
Subject to sporadic but mild protests over the years, the county nativity scene survived the homeless protest camps set up at the courthouse through the holidays for several years in the 1980s. Protest leaders then used the theme of the baby Jesus with Mary and Joseph in a manger, because there was no room at the inn.
The nonprofit Pima County Parklands Foundation owns the pieces. But county government, which a decade ago leveled the courthouse's historic fountain--a mainstay in the photos of the hundreds of weddings performed there each year--allowed the figures to be broken and damaged by water while in storage. Damage to the nativity figures likely helped usher Pima County into an era of unwitting political correctness. City, county, state and school governments across the country have been pressured to remove religious symbols from Christmas displays and to change lyrics in Christmas carols. The push has spawned counter movements, such as BringBackChristmas.org, according to Sunday's New York Times. And those enjoying the neutrality express fear that the Christian right feels so emboldened by the re-election of George W. Bush that the pendulum will swing back.
The main challenge here was lobbed by Simon, the presiding justice of the peace until Dec. 31. Simon, a Democrat who faced no opposition in his re-election last month, began to inquire about the nativity scene 10 months ago.
Simon said he received "several inquiries" about the appropriateness of the nativity scene. Simon refused to tell the Weekly who complained and in what manner those complaints were lodged.
In a request for a legal opinion from the office of County Attorney Barbara LaWall, Simon wrote, "the subject of such 'religious' items for display on public property has been prominent in the news. The 'ten commandments' statute (sic) on display at a state Supreme Court building led to the removal by federal court order and the removal of the State Chief Justice (Roy Moore) himself. In light of this recent activity and the several complaints I have received, I have determined it would be prudent to request a formal legal opinion on this subject."
Deputy County Attorney Stacey Roseberry responded on March 30 with 2 1/2 pages that outlined two U.S. Supreme Court rulings and concluded, "(the) analysis (for the Pima County nativity scene) will turn on the context of the display, and whether a reasonable viewer would understand that the government is not endorsing a particular religion. Accordingly, the constitutionality of a nativity display depends on the totality of the holiday scene."
Justice Sandra Day O'Connor, sister of Republican Supervisor Ann Day, was key in both cited Supreme Court opinions.
Roseberry closed with the line: "Since I have not seen the display, I cannot provide a more definitive opinion at this time."
Simon nonetheless found fortification sufficient to fire off a Nov. 16 memo to County Administrator Chuck Huckelberry, which read, in part: "... over the course of many years I have been curious about this annual tradition during the holiday season.
"The nativity scene in question is quite prominent itself and in comparison to the winter scene display," wrote Simon, who is Jewish. "As such, it suggests the county may be endorsing a particular religion. In my opinion this runs afoul of constitutionally permitted displays."
Huckelberry believed that there would be a diverse display that included the nativity scene. But several weeks later, he was told that the nativity figures were too damaged.
Simon, like his eight colleagues, normally rules on DUI and other traffic cases, initial appearances, low-level crimes and civil lawsuits for awards that are less than $10,000. And, like his colleagues as well as the assessor, recorder and treasurer, Simon simply works at the building. The presiding justice of the peace, as Huckelberry has noted, has no other powers to dictate rules for the facility other than to suggest security procedures.
Recorder F. Ann Rodriguez, a Democrat headed for her fourth term, responded with ornate Christmas decorations.
Simon was appointed to his post by the Board of Supervisors in 1997 and retained the position through three elections. He declined to answer questions from the Weekly, and refused to state his opinion of the current display and the menorah annually placed in Presidio Park west of the old courthouse. Simon instead referred to his memos and Roseberry's opinion.
