Posted on by Marc O. DeGirolami

Court Dismisses FFRF Nativity Scene Suit

A federal district court in Michigan has granted summary judgment to the City of Warren in an action involving the display of religious symbols on state grounds brought by the Freedom From Religion Foundation. 

Here’s a quick summary.  The City puts up a holiday display in the atrium of the Warren Civic Center each year, and the display includes “Christmas trees, ribbons, ornaments, a ‘Winter Welcome’ sign, a ‘Merry Christmas’ sign, nutcrackers, elves, reindeer, a Santa’s mailbox, snowmen, wreaths with lights, bushels of poinsettias, candy canes, wrapped gift boxes, a ‘prayer station,’ and a Nativity Scene.”  There was also a small plaque indicating that the display was “sponsored and provided by the Warren Rotary Club.”

FFRF sent several letters to the City objecting to the inclusion of the Nativity Scene and to its placement, and the mayor of Warren responded disagreeing with the objection and stating that the City did not endorse or favor any religion, and that any religion would be permitted to display “their religious holy seasons in our atrium.” FFRF then sought a permit to display a sandwichboard sign alongside the Nativity Scene containing what were claimed to be “nontheist” statements, including the following: “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.”  Finding that the sign was anti-religious and disparaging of religious believers, the City did not allow its display.  FFRF sued the City for violations of the Free Speech Clause, Equal Protection Clause, and the Establishment Clause.  The core of the Establishment Clause claim was that the City “approved” the Nativity Scene by displaying it but disapproved the sandwichboard by excluding it from the display.

The Court rejected the claim.  It found that the secular purpose of excluding the sandwichboard was the avoidance of disruption and the potential for confrontation at City Hall.  The sandwichboard was offensive and promoted ill will among members of the City, the Court concluded.  And the primary objective of the display was not religious but secular, consisting of numerous secular symbols and signs.  The inclusion of the Nativity Scene did not transform the overall effect to one of promoting religion.  As for endorsement, the Court noted that the holiday display, including the Nativity Scene, was displayed by a private group, and when the Nativity Scene was looked at within the full context of the display, it did not convey a message of endorsement to a reasonable observer, as it was a comparatively small feature of the display.

The case is Freedom From Religion Foundation v. City of Warren, 2012 U.S. Dist. Lexis 75464 (E.D. Mich. May 31, 2012).

Posted on by Mark Movsesian · 1 Comment

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

Posted on by Mark Movsesian · 1 Comment

Mojave Desert Cross Case Settles

On Monday, a federal district court in California approved a settlement ending the long-running litigation in Salazar v. Buono, the Mojave Desert Cross case. The case, the most recent Supreme Court ruling on public religious displays, involves a Latin cross on a war memorial on federal land in the Mojave Desert. After a district court enjoined the government from displaying the cross as a violation of the Establishment Clause, the government attempted to convey the land to a private association, the Veterans of Foreign Wars. The district court ruled that the conveyance violated the terms of the injunction, but, in 2010, a divided Supreme Court reversed and remanded for further consideration.

This week’s settlement allows the government to convey the land to the VFW in exchange for other property. The National Park Service will install and maintain a fence with signage indicating that the land is privately owned and maintain roads allowing for “safe and suitable” public access. The government will not replace the cross, which someone stole after the Supreme Court’s decision, but the new owners are of course free to do so, and in fact, the VFW has a cross ready. The government will restore the plaque designating the spot as a national war memorial and has reserved the right to have Park Rangers explain to visitors what they’re looking at. H/T:  Religion Clause.

Posted on by Mark Movsesian

“Big Mountain Jesus” Stays for Now

An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.

Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.

Posted on by Marc O. DeGirolami

Rancor Follows Decision Striking Down School Prayer

Here is an interesting story about the acute social rancor that has followed a U.S. District Court’s decision to hold unconstitutional the display of a prayer in a Rhode Island public school auditorium.  The prayer, written by a seventh grader some 50 years ago, said this:

School Prayer.

Our Heavenly Father, Grant us each day the desire to do our best, to grow mentally and morally as well as physically, to be kind and helpful to our classmates and teachers, to be honest with ourselves as well as with others.  Help us to be good sports and smile when we lose as well as when we win.  Teach us the value of true friendship.  Help us always to conduct ourselves so as to bring credit to Cranston High School West.  Amen.

An atheist student sued to eliminate the prayer as a violation of the Establishment Clause and the court agreed.  Whether the town will appeal is unclear.  The story reports that State Representative Peter Palumbo has said some very harsh things about the atheist student plaintiff.  Justified or not, the anger that he expresses and which the town obviously feels is properly directed against the court.

Posted on by Marc O. DeGirolami · 1 Comment

Hart on the Future of Religion in America

A very rich essay by the Eastern Orthodox theologian David Bentley Hart in The New Criterion.  Some of the reflections on the differences between the United States and France are well worth thinking about, but do read the whole thing.  Here’s a bit:

A civilization’s values, symbols, ideals, and imaginative capacities flow down from above, from the most exalted objects of its transcendental desires, and a people’s greatest collective achievements are always in some sense attempts to translate eternal into temporal order. This will always be especially obvious in places of worship. To wax vaguely Heideggerean, temples are built to summon the gods, but only because the gods have first called out to mortals. There are invisible powers (whether truly divine powers or only powers of the imagination) that seek to become manifest, to emerge from their invisibility, and they can do this only by inspiring human beings to wrest beautiful forms out of intractable elements. They disclose their unseen world by transforming this world into its concrete image, allegory, or reflection, in a few privileged places where divine and human gazes briefly meet.

Such places, moreover, are only the most concentrated crystallizations of a culture’s highest visions of the good, true, and beautiful; they are not isolated retreats, set apart from the society around them, but are rather the most intense expressions of that society’s rational and poetic capacities. And it is under the shelter of the heavens made visible in such places that all of a people’s laws and institutions, admirable or defective, take shape, as well as all its arts, civic or private, sacred or profane, festal or ordinary. This is a claim not about private beliefs, or about the particular motives that may have led to any particular law or work of art, but about the conceptual and aesthetic resources that any culture can possess or impart, and those are determined by religious traditions—by shared pictures of eternity, shared stories of the absolute. That is why the very concept of a secular civilization is nearly meaningless.

Read more

Posted on by Marc O. DeGirolami

Melchior, Caspar, Balthazar…and Hugo

In this country, complaints are heard when municipalities put up nativity scenes on government property.  But thus far, I haven’t seen a case where politicians sneak themselves into the manger. 

Apparently in Venezuela, Hugo Chavez has instituted a different practice.

Posted on by Mark Movsesian

Merry Christmas, Mr. President

At the lighting of the National Christmas Tree on the Ellipse in Washington last week (that’s last year’s tree on the left), President Obama wished Americans a Merry Christmas and Happy Holiday Season. His remarks, in part, were quite sectarian:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season. . . .  And this holiday season, let us reaffirm our commitment to each other, as family members, as neighbors, as Americans, regardless of our color or creed or faith.  Let us remember that we are one, and we are a family.

Our readers in Europe (and Rhode Island) might find the first paragraph, which could easily have come from an evangelical preacher, a bit shocking, but official statements like this are very much a part of the American tradition. Did the President violate the Establishment Clause? I hardly think so, even under the endorsement test, given the context of his remarks and the fact that he coupled the sectarian reference with a more universal message of good will to everyone, regardless of creed — a message that is part of the Christmas story, too.   (H/T: First Things).

Posted on by Mark Movsesian

“Providence” Will Have To Go, Too

The Christmas Wars are really heating up, and December’s only just started. From Rhode Island, the setting of the Supreme Court’s first Christmas display case, Lynch v. Donnelly (1984), a new controversy over what to call the 17-foot blue spruce that decorates the statehouse. Governor Lincoln Chafee insists on referring to it as the state “Holiday Tree” rather than “Christmas Tree,” a decision that has exposed him to some ridicule, with critics accusing him of triviality and political correctness. The governor argues that “Holiday Tree” is more consistent with Rhode Island’s long tradition of separating religion and government. No word yet whether the governor will also seek to change the name of the state capital, Providence (est. 1636), so that it too conforms to state tradition.

Posted on by Mark Movsesian · 4 Comments

“Big Mountain Jesus”

Yet another religious display case, this time from Big Mountain, Montana.  For more than 50 years, the Knights of Columbus has maintained a six-foot tall statue, “Big Mountain Jesus,” as a tribute to World War II veterans who told of seeing similar shrines while fighting in Italy. The statue is on public land administered by the US Forest Service. In response to a complaint from the Freedom from Religion Foundation that the  statue violates the Establishment Clause, the Forest Service told the Knights the statue could not remain. This decision caused a public outcry, and the Forest Service is now reconsidering. One possible solution is a land swap, in which the Forest Service would give the 25 x 25 foot parcel on which the statue stands to a nearby ski resort in exchange for another piece of real estate.

This dispute is very similar to Salazar v. Buono, the Mojave Desert Cross case from 2010, the last occasion on which the Court addressed religious displays on public property. Salazar involved a Latin cross erected on public land by a private group as part of a war memorial; when lower courts ruled the cross unconstitutional, the government executed a land swap to convey the memorial to private parties. Procedural complications made Salazar rather narrow, though, and it doesn’t give too much guidance here. Quite apart from Salazar, the Court’s jurisprudence on public religious displays is famously unpredictable. Under some versions of the endorsement test, “Big Mountain Jesus” is pretty clearly unconstitutional. But the Court doesn’t always apply the endorsement test, and Justice Kennedy’s plurality opinion in Salazar indicates that even a sectarian display, in the context of a longstanding war memorial, may be constitutional. The Forest Service plans to announce its decision next year.