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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