FFRF Loses Challenge to Nativity Scene in Michigan

FFRF Loses Challenge to Nativity Scene in Michigan June 6, 2012

U.S. District Judge Lawrence Zatkoff has ruled against the Freedom From Religion Foundation and in favor of the city of Warren, Michigan in a case challenging a nativity scene at city hall and their rejection of a display that the FFRF wanted to put up next to it. The ruling details the display that has appeared annually at Warren city hall:

Each Christmas season, the City erects a holiday display in the Atrium (“Holiday Display”). The Holiday 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 the Nativity Scene. A small sign stands in front of the Nativity Scene stating that it is “sponsored and provided by the Warren Rotary Club.”

FFRF first asked that the city not put up the display in 2010, which the mayor rejected. In a letter to the group, Mayor James Fouts said:

The city of Warren is NOT “promoting or endorsing religious beliefs.” If we were doing this, other religions would not be allowed to display their religious holy seasons in our atrium. However, they have been allowed and will be allowed.

In no way has ANY religion been excluded from displaying its holy season in city hall.

So FFRF requested that it be allowed to put up its own display, which read:

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.

But the mayor rejected that display in a letter:

I have reviewed the proposed 2-sided “sandwich board” sign. The language on the proposed sign is clearly anti-religion [sic] and meant to counter the religious tone of the Nativity Scene, which [*7] could lead to confrontations and a disruption of city hall.

This proposed sign is antagonistic toward all religions and would serve no purpose during this holiday season except to provoke controversy and hostility among visitors and employees at city hall.

Your phrase that “Religion is but myth and superstition that hardens hearts and enslaves minds,” is highly offensive and is not a provable statement. Likewise, your statement that there are “no gods” and “no angels” is also not provable.

If you requested permission to put up a sandwich board saying that there is no Santa clause, you would be met with the same response…

Everyone has a right to believe or not believe in a particular belief system, but no organization has the right to disparage the beliefs of many Warren and U.S. citizens because of their beliefs. Thus, I cannot and will not sanction the desecration of religion in the Warren City Hall atrium.

As I would not allow displays disparaging any one religion, so I will not allow anyone or any organization to attack religion in general. Your proposed sign cannot be excused as a freedom of religion statement because, to my way of thinking, this right does not mean the right to [*8] attack religion or any religion with mean-spirited signs. The proposed sign would only result in more signs and chaos…

Your non-religion is not a recognized religion. Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions…

Clearly, your proposed display in effect would create considerable ill will among many people of all recognized faiths.

Judge Zatkoff ruled that the city had legal grounds to reject the display. First, he said that the atrium was a limited public forum, as opposed to a traditional or dedicated public forum. Under Supreme Court precedent, a traditional public forum is one “which by long tradition or by government fiat have been devoted to assembly and debate” and where the “rights of the State to limit expressive activity are sharply circumscribed.” A dedicated public forum is a space which the government opens “to the public at large, treating [the location] as if it were a traditional public forum.”

But a limited public forum, the government “is not obligated to allow persons to engage in every type of speech.” The government can create forums for “use by certain groups or dedicated solely to the discussion of certain subjects.” And this is reasonable, as far as it goes; if a public school puts up a bulletin board for the purpose of noting academic achievements, that doesn’t make it open to everyone to post political or religious statements — the forum is limited to that purpose. The problem is in the application of that standard to this particular case.

While access to the Atrium is limited in general, the Court notes that Plaintiffs did not seek placement of the sign in the Atrium at large. Rather, they sought placement of the sign in the Holiday Display, next to the Nativity Scene. The Holiday Display comprises a section of the Atrium with an even more limited purpose than that of the Atrium as a whole. The Holiday Display itself can hardly be considered a forum open to the public at large since the City does not invite the public at large to place objects or decorations within the Holiday Display.

Additionally, the City’s exclusion of certain expressive conduct is properly designed to limit the speech activity occurring in the Holiday Display to that which is compatible with its purpose. The purpose of the Holiday Display is to decorate the Atrium and, according to the Mayor, celebrate the traditional holiday season and promote good will. There is nothing indicating to the Court that the Holiday Display was intended as a forum for religious or political debate and consequently, non-celebratory advocacy and political statements are properly excluded from the display…

The Court finds the City’s exclusion of the Sign reasonable under the circumstances. First, the political nature of the Sign is not encompassed by the purpose of the Holiday Display, which is to celebrate the holiday season and promote good will. The clause “in this season of the WINTER SOLSTICE[,] let reason prevail,” does not, on its face, indicate that the sign is celebratory in nature. As Defendants noted, the Winter Solstice is a natural phenomenon, largely undisputed in its occurrence. Plaintiffs offer nothing to indicate that FFRF’s adherents celebrate this event as a holiday.

Yet, even if this statement could reasonably be construed as celebratory, the remaining portions of the Sign are undeniably non-celebratory, are political in nature, and are intended to challenge the beliefs of adherents to various faiths—hardly meant to celebrate the holiday season, be decorative, or promote good will…

As such, Plaintiff was told, in no uncertain terms, that the Sign was at odds with the purpose of the traditional Holiday Display—namely to celebrate the holiday season and promote good will.

Thus, the Sign’s purpose is to debate the truth or falsity of religion by advertising FFRF’s cause, beliefs, and website, while also attacking the beliefs of religious adherents. Such express advocacy clearly and unequivocally contradicts the celebratory, decorative, and good-will-promoting purpose of the Holiday Display. By excluding these statements, the City is reasonably limiting speech activity occurring in the Holiday Display to that which is compatible with the Holiday Display’s purpose.

Second, the City had the right to exercise control over the Holiday Display so as to avoid interference with its government functions. Based on the Court’s review of the photographs provided by the parties, the Atrium contains a five-story vaulted ceiling, with offices located on each floor. The front of each office is adjacent to the Atrium, and there is nothing to insulate the offices from any noise or altercation that may emanate from the Holiday Display. Defendants therefore have a reasonable basis to consider the potential disruptions to city business that could arise if the City allowed political statements and signs to be displayed in the Atrium.

For instance, were the City to allow placement of the Sign, should it also permit a second group, at odds with the FFRF’s views on the winter solstice, to place a sign challenging these views? Must a third group then be allowed to come and make statements for or against views raised by the second group? Should this debate be permitted to take place at the doorstep of numerous City offices, within a Holiday Display? The purpose of the Holiday Display is to celebrate the holiday season, not to act as a catalyst for religious debate. The Court concludes that the City would encounter great difficulty in managing these complications—unless the City is permitted to exclude speech on subject matter that falls outside the scope of the subject matter of the forum.

I didn’t like the FFRF’s choice of the sign they submitted here in the first place. The judge is clearly right about its purpose, though I think the conclusions he draws from that are unreasonable. The solution, I think, is to submit a display that does not just attack religion but does celebrate reason and humanism. That will make it much harder to reject, undermine the court’s reasoning in this case, and it also presents a positive message rather than a negative one. I think that would have been a better way to handle it from the start and it’s the obvious way to respond to this ruling.

In fact, as I have been arguing for some time now, I think we need model displays and monuments that present and celebrate humanist principles as an alternative to both nativity displays and Ten Commandments monuments. Those model displays could be submitted in response to similar displays all over the country.

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  • d cwilson

    Your phrase that “Religion is but myth and superstition that hardens hearts and enslaves minds,” is highly offensive and is not a provable statement. Likewise, your statement that there are “no gods” and “no angels” is also not provable.

    So, the test is that the statement has to be provable in order to be displayed? Did the Rotary Club prove that Jesus was literally born in a manger before putting up the manger scene? Did you ask for proof that elves and angels exist before putting up those ornaments?

  • Artor

    How about something like, “Axial Tilt is the Reason for the Season. Celebrate Reason & Logic.”

  • uncephalized

    The “hardens hearts and enslaves minds” line always just pisses me off, and I’m an atheist. It doesn’t piss me off because it’s false–it’s because it’s terrible marketing. If you’re trying to open people’s minds on an issue insulting them and coming off as a huge jerk is NOT the way to do it. A simple message along the lines of “you can be a good person without gods or religion, and Happy Solstice to you and yours” would be fine. Obviously you’d want to make it sound better than that but you get the idea.

  • rork

    I don’t buy the rationalizations of the courts. We have a little display in my town and it is indisputable to any thinking person that it is a Christian thing, and the intentions of the display is not in any doubt. In court however, the presence of the snow flake sculptures changes everything. It’s bullshit.

  • Sastra

    I’ve always liked Margaret Downey’s “Tree of Knowledge” idea — a tree decorated with miniature great books and works of literature, including iirc both The God Delusion and a Bible. Positive, makes a nice point about atheism/humanism and its emphasis on reason — and much harder to attack.

  • dingojack

    I second d cwilson‘s thoughts.

    So the legal standard for holiday displays is ‘provable’, is that ‘reasonable doubt’ or ‘balance of probability’?

    Perhaps the good judge can give us legal guidance here!

    Dingo

  • The language on the proposed sign is clearly anti-religion [sic] and meant to counter the religious tone of the Nativity Scene

    Wait, what? Did the judge miss that? I’m willing to go along to an extent with the argument that a city council can refuse a sign that doesn’t embody sufficient “holiday cheer”, but that wasn’t the argument in the rejection letter.

    Your non-religion is not a recognized religion. Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions…

    And here I thought there was a lot of precedence that rules that non-religion is covered under the establishment and the free exercise clauses?

  • jaranath

    I have tried to be diplomatic with FFRF about that sign and gotten nowhere. It’s caused me personal problems. I understand the logic behind it, but it still needs to change slightly, galling as that may be. There seems to be an attachment to that specific phrasing.

  • Sastra

    Personally, though, I’d leave the Bible off of a “Tree of Knowledge.” The intent might be to nod at its historical or literary merit, but it would be misconstrued. And it would piss off many of the atheists it’s supposed to represent.

    If simpler is better, “Reason’s Greetings — sponsored by (put your atheist/skeptic/humanist group name here)” probably works.

  • raven

    One of my criticisms of atheist holiday displays is that they are unimaginative and not very fun.

    The holidays are supposed to be fun.

    1. The holiday Tree of Knowledge is a good idea. With books. We had a tree one year with a scientific ornament theme made from standard lab supplies.

    2. An all dinosaur creche manger theme. Everyone loves dinosaurs. Or maybe one of all modern comics superheroes. I’m sure Spiderman and Green Lantern would make good wise men. There is an all zombie creche manger scene that is commercially available.

    3. Maybe a display of all the year end religious celebrations that Xmas hijacked. Saturnalia the Roman one, Solstice, Kwanza, Hannukah etc.. This gets the point across that there are many religions and they all can’t be true.

    4. Something else that celebrates reason and science. There are tens of millions of Nones, and some of them must have good ideas for displays.

  • eric

    The solution, I think, is to submit a display that does not just attack religion but does celebrate reason and humanism. That will make it much harder to reject, undermine the court’s reasoning in this case, and it also presents a positive message rather than a negative one.

    Yes. In fact, I’d suggest that they avoid attacking religion altogether and just put up a simple “Seasons Greetings from the Freedom From Religion Foundation” sign. As we have seen from bus ad submissions, even innocuous messages like this get rejected because they mention atheism. Such a sign would put FFRF on the best legal footing, as it is celebratory and makes absolutely no comment at all about anyone else’s belief system.

    One might also submit scenes or celebratory messages from pagan celebrations, such as Yule.

    Oh, and Mr. Mayor – non-religion is a recognized belief system for 1st amendment legal protection purposes. Bzzzzzt, you will be receiving the constitutional law home game rather than moving to the next round.

  • wscott

    @ uncephalized: Well said. We often say that there’s no right to not have your beliefs challenged, and I do believe that. But this is just plain being a dick. Starting out by calling your audience deluded fools is not a terribly effective debating tactic. And we wonder why atheists are so often portrayed as joyless asshats out to ruin everyone’s fun?

  • anandine

    So far, Artor @2 wins.

  • One of the various atheist organizations with a bit of cash should sponsor a competition to design a really good atheist monument (and maybe a billboard sign) that doesn’t look childishly stupid. Surely there must be a few tasteful, clever, free-thinking artists out there that could do it. Sandwich boards and bad graphic design shouldn’t be what we’re putting up next to the cheesy church stuff. We should be able to blow it away on a creative level as well as intellectually.

    (hint to atheist monument-designers: either heavy and nearly indestructible, or inexpensive and easily replaceable)

  • raven

    Podpocalypse » Zombie Nativity Scene

    ww.podpocalypse.com › Aint that sum shit

    24 Dec 2011 – Check out this epic Zombie Nativity scenes, a Zombie wise man, zombie sheep… babies… it’s got … find all these videos and links here …

    This Zombie Nativity scence doesn’t really work for me, at least as a public display.

    There is also an all bacon one for people who want to eat their Nativity scence.

    I’d still go with the all dinosaur one.

  • Skip White

    raven @ #10: ” I’m sure Spiderman and Green Lantern would make good wise men.”

    I just happen to have tree ornaments of Spiderman and Green Lantern!

  • d cwilson

    How about a Marvel Zombies and Black Lantern manger scene? Then we can have Green Lantern and Spider-man AND zombies!

  • jaranath “I have tried to be diplomatic with FFRF about that sign and gotten nowhere.”

    Did you try putting up a sign?

  • jaranath

    I like the alternatives suggested, but note this ruling seems awfully broad. I’m no legal expert, but this sounds like it’s in the same vein as the (Summum?) decision. That is, it sounds like the court has given the government the right to pick and choose which religion gets to speak. If there’s some rationalization that can be made to limit access, however flimsy (“traditional”, read “Christian” holiday season), that’s enough. IIRC, Bill O’Reilly loves this argument.

    So the response to trees of knowledge, monumenta, art, happy season’s greetings, festivus poles, whatever, will all be the same: STFU. It’s not “traditional” (Christian, and maybe Jewish) so you don’t get to say it. Or we don’t think you really mean it, you’re not a real religion, which the State has the power and desire to decide. Or we’ve decided it’s “political”, unlike nativities which it is EXTREMELY IMPORTANT to locate in capitols instead of churches…not political at all!

    Sorry, I’m ranting, but this is reprehensible. It’s why I’m so adamant that NO religious or anti-religious displays should be allowed.

  • jaranath

    modusoperandi: I was involved with one, yes. I didn’t like it then but it was good to have FFRF’s backing.

  • jaranath, no, I meant “As part of your dialogue with the FFRF Did you put up a sign stating your displeasure at their choice of words in their sign?”. Obviously.

  • jaranath

    (forehead smack)

    No. I did not. That would require an ability to notice potential humor. Would’ve been awesome, though.

  • geraldmcgrew

    So FFRF’s argument is, “If Christians get a nativity scene, then we should get a sign that says (in essence), “It’s WINTER SOLSTICE…and religion SUCKS”?

    And they honestly thought that was a good legal strategy? Who the heck is calling the shots at that place?

  • jaranath

    The logic, as I understand it, is that:

    1. They can’t object because they have to allow any religious display, and can’t pick and choose based on content. I agree with that…the judge obviously didn’t.

    2. FFRF believes no display, including their own, should be allowed. I agree there too. So a cuddly fuzzy sign reinforces the idea that capitols are great places for religious displays…indeed, some actually attracted signs simply cheering all this great 1st Amendment exercise. A thorny sign encourages disallowing all displays.

    I am decidedly in the aggressive atheist camp, but that doesn’t mean cuddly is always bad or you breathe fire 24/7, and I’m not sure I buy #2 in this case. I think too many people focus on the aggressive language and miss the intended point that “hey, there’s a nativity over there trying to claim government endorsement of Christianity (and usually Catholicism)”. And I think, as Eric says, we’ve seen the freakout that even cuddly bus signs have caused…I don’t think we have to word the sign provocatively to get people upset. Just being visibly existing atheists accomplishes that.

  • geralmcgrew, it’s the Grinch.

  • seraphymcrash

    “These Holidays, the Michigan Atheists and Skeptics would like to you and your family to join us in celebrating the Season for Reason.”

  • escuerd

    Your non-religion is not a recognized religion. Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions…

    Say “pretty please”.

    In all honesty, I can’t express how much I detest the idea that religions (or beliefs in general) are the kind of thing that should be protected from “abuse”.

    Honestly, I didn’t care for the display either, but this judge’s idea that superstition should be shielded from criticism (and that it should in fact be privileged over non-belief) makes me want to support that and more.