Back in December, I wrote about a Nativity Scene in Brookville, Indiana that had been up for over 50 years, despite warning letters (over the course of several years) from the Freedom From Religion Foundation to take it down.
The display, which was owned by the Town of Brookville, sat on the grounds of the Franklin County Courthouse.
The defenders of the display kept clinging to the same old arguments as usual: It’s tradition. Just look away. Why do you hate Christmas?!
None of them wanted to address the legal issues.
The commissioners said they have been ignoring the letters, and instead rallying and fighting to keep the nativity there.
“If people don’t like the look of it I think they can look the other way, or don’t look at all. It’s been a tradition here for many, many years and I hope it’s for many more years. I think we deserve the right to put up what the community wants and I don’t think anybody else should tell us what to do,” Brookville resident Wayne Monroe said.
“We” was the key word there. Residents could put up whatever they wanted on their own property. The city, however, couldn’t promote a particular religion. It’s that simple.
So after years of politely asking local officials to take care of this matter and nothing changing, FFRF filed a federal lawsuit against the county:
After receiving complaints by local residents, FFRF first contacted Franklin County about its unconstitutional nativity in 2010. That year the nativity scene was erected at the foot of the flag pole. FFRF renewed complaints in 2011 and 2013. The county refused to take down the religious scene, moving it closer to the courthouse entrance in 2011. Community members have held annual rallies around it, where a commissioner was quoted this year as saying, “The atheists and the liberals are taking over our country.”
…
“There are ample private and church grounds where religious displays may be freely placed, said FFRF Co-President Annie Laurie Gaylor. “Once Franklin County enters into the religion business, conferring endorsement and preference for one religion over others, it strikes a blow at religious liberty, forcing citizens of all faiths and of no religion to support a particular expression of religion.”
The lawsuit called for the display to be taken down immediately and for the county to pay all of FFRF’s relevant legal bills.
To an extent, that worked. The display was taken down after Christmas. But the lawsuit was still moving forward because FFRF assumed the County would just put the display back up in the future.
That’s when the Franklin County Board of Commissioners adopted a new policy. They said that the grounds would turn into a public forum:
The ordinance, adopted by the County’s Board of Commissioners this week, formalizes the county’s prior informal policy, namely:
– To allow displays, demonstrations, exhibits, rallies, and other expressive activities on courthouse grounds, without regard to the viewpoint of those activities;
– To provide all county citizens with equal access to the courthouse grounds; and
– To apply a uniform, neutral permit application process.
That sounded fine on the surface. Everyone could put up a display! Hello, atheist bench! Hello, Flying Spaghetti Monster! Hello, giant statue of Baphomet!
But wait. If you read that ordinance, it makes clear that only “county citizens” have access to the courthouse grounds… which is very convenient when you have a Christian majority in the area. The Satanic Temple, for example, didn’t have any members in the County. So was the group’s free speech being restricted?
They wanted to find out.
Both FFRF and the Satanic Temple submitted proposals for displays, but because neither group was based in Franklin County (and FFRF’s members in the area weren’t involved in the process), the County rejected both applications.
That was the basis for another lawsuit filed back in March by FFRF (with help from the ACLU):
In a press release after the ordinance passed, Jocelyn Floyd, associate counsel for the society, claimed, “A public forum, such as the Franklin County Courthouse lawn, is open to speech from all citizens on any topic, religious speech included. If people disagree with a message being proclaimed in a public forum, the proper response is to apply and put up their own display as well, not try to shut down the displays of other citizens.”
“That welcome message apparently doesn’t apply to atheists,” noted Annie Laurie Gaylor, FFRF Co-President. “When FFRF applied to place a charming display celebrating the Dec. 15 ‘nativity’ of the Bill of Rights, we were rejected. The county cannot create a public forum only for Christianity or majority views.”
…
The county currently limits applicants to Franklin County citizens. FFRF contends this requirement violates its First Amendment rights and is asking the court to enter an injunction allowing the displays.…
The lawsuit specifically alleged:
The requirement of the Ordinance that persons wishing to use the Courthouse lawn be residents of the County is not narrowly tailored to advance an important government interest, nor is it reasonably related to a legitimate government interest.
This requirement also does not leave FFRF or TST ample alternative channels through which they may reach their intended audience.
In the event that FFRF and/or TST are unable to erect their displays during the requested period of time in 2015 and 2016, they will suffer damages.
It’s been a long time since that lawsuit was filed.
On Wednesday, U.S. District Judge Tanya Walton Pratt finally issued her ruling on the matter… and I’m sorry to say it didn’t go well.
Walton Pratt said that FFRF didn’t show any constitutional violation took place, dismissing the lawsuit with prejudice, so FFRF can’t raise the same issue again.
The Thomas More Society, which represented the County, is obviously thrilled:
“This dismissal of FFRF’s lawsuit against the Nativity Scene is a tremendous victory not only for Franklin County but for religious liberty in general,” said Peter Breen, Thomas More Society Special Counsel. “The decision reaffirms the right of private citizens to exercise their religious faith in the public square. This dismissal is also a solid precedent for counties and cities seeking to fend off nuisance lawsuits by the Freedom From Religion Foundation.”
…
Judge Walton Pratt’s decision states that, with the County’s enactment of the Ordinance, “the Court cannot draw a reasonable inference that Franklin County could be liable for any misconduct alleged in FFRF’s Amended Complaint.” Therefore, the Court has dismissed FFRF’s lawsuit for lack of jurisdiction because FFRF was not able to show that Franklin County is violating the Constitution.
Because there is no actual injury and the case is moot, the Court has also refused to award FFRF’s requests for injunctive relief, costs and attorney’s fees, and awards for other “proper” relief.
I can’t say I’m terribly surprised by this. By limiting displays to people who live in the county, local officials weren’t overtly discriminating against any group in particular.
That said, if FFRF’s local members apply for a permit and get rejected, the County could be sued again. They may do that this winter.
While it’s a disappointing end to the case, what’s really appalling is how the County did everything in its power to keep a Nativity Scene on the courthouse grounds. Sure, they may have to cede space to other displays in the future, but that’s a risk they’ll take. Who’s going to have the courage, after all, to fight for an unpopular display? The goal for officials was to promote Christianity through the government, and they achieved it.
FFRF and the ACLU have not yet publicly commented on the case.
(Large portions of this article were posted earlier)
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