Appeals Court Rules That a City Can Put Up a Nativity Scene on Government Property but Reject an Atheist Display

Last (War on) Christmas, in response to a government-sponsored nativity scene in the center of town, the Freedom From Religion Foundation put up a sign of their own in Warren, Michigan:

Douglas Marshall puts up the FFRF sign in Warren, Michigan (David Angell – Daily Tribune)

(Just over a day later, the banner was vandalized… then stolen.)

The reason they were allowed to put the sign up at all was because they applied for and received a permit to do it. It wasn’t part of the official government display; it was a separate, alternative display.

But in the winters prior to this one, FFRF tried to do a few other things. They tried to get the Nativity Scene removed from the government’s display. That didn’t work. Then, they tried to get their sign included in the display. The city said no to that, too, so FFRF (and member Douglas Marshall) sued the city. A district court ruled for the city, so FFRF appealed to a higher court. The argument was that the Nativity Scene — despite being surrounded by other generic holiday displays — was a government endorsement of religion.

On Monday, three judges on the Sixth Circuit Court of Appeals — all of whom were appointed by Presidents George Bush and George W. Bush — issued their own unanimous ruling: They were on the city’s side, too (PDF):

The nativity scene, when accompanied by this collection of secular and seasonal symbols, does not amount to an establishment of religion or for that matter an impermissible endorsement of it.

All but one of the objects in the holiday display are nonreligious. Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign — all of them, all that is but the nativity scene — are secular.

a city does not run afoul of the Establishment Clause
by including a creche in a holiday display that contains secular and religious symbols

The Court also added that FFRF’s sign was divisive, disparaging, and antagonistic — and so it made sense for the city to not include it in their display:

[Mayor Jim Fouts' words] are not the words of someone trying to establish any one religion or religion in general; they are the words of someone trying to explain the common sense risks of disparaging faith-based and secular symbols, whether a creche or a Santa, alike.

While the Mayor also said a lot of other things that made no sense (“our country was founded upon basic religious beliefs”), the Sixth Circuit let those slide, adding that the Mayor was “apparently untrained as a lawyer.”

They even lay out what is allowed and isn’t allowed, opening the door for cities everywhere to copy what they did and present a Nativity Scene… mildly adorned by other generic holiday displays:

[A city] could choose to include a “Winter Welcome” sign. And it could choose to add a nativity scene (so long as it did not violate the Establishment Clause). It could choose to add an angel. And it could choose to keep out a devil. It could choose to add a Santa. And it could choose to deny a sign saying, “There is no Santa.” It could choose to incorporate a message about Ramadan. And it could choose to deny a message disparaging any one religion or religion in general. Just as Congress’s creation of a National Day of Prayer on the first Thursday of May does not compel the legislature to recognize a National Day of Non-Prayer each year, so too the City of Warren could opt to have a holiday display without a Winter Solstice sign.

I know I’m not a lawyer, but I’m not getting it. This isn’t a neutral display celebrating the holidays. This is a pro-Christian diaplay, through and through.

FFRF seems to believe that, too. They’re going to consider asking the entire Sixth Circuit to review, and possibly overrule, the opinion of those three judges (an en banc review). To them, this isn’t a case about religious symbols on government property:

“The Sixth Circuit incorrectly characterized this case as a religious-symbol-on-government-property case, when in reality this case is about free speech,” noted FFRF Senior Staff Attorney Rebecca Markert.

“We are not a Christian nation. Under our secular constitution, city governments should be forbidden to endorse one religion over another, or religion over nonreligion, much less sitting in judgment of what is or isn’t a ‘desecration’ of religion,” said FFRF Co-President Annie Laurie Gaylor.

If the ruling stands, you can bet other cities are going to use this case to justify their own Nativity Scenes next Christmas. So long as they put some reindeer and candy canes around the display, it’s perfectly fine, says the court, to show the birth of Christ and refuse an atheist display.

That’s a frightening precedent to be set. let’s hope it’s overturned.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.


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