Oscoda is a nice little town here in Michigan I once knew fairly well. That township finds itself on the receiving end of a letter from the Freedom From Religion Foundation demanding that they remove a nativity scene from the grounds of the township hall.
The display stands on its own, without any secular symbols to dilute the message of endorsement. There are two key cases here, both from the 80s and both bearing the mark of former Supreme Court Justice Sandra Day O’Connor. They are Lynch v Donnelly and ACLU v Alleghenny County. In those cases, O’Connor offered up the endorsement test for establishment clause violations, which the Supreme Court sometimes uses rather than the Lemon test. Basically, it means that putting up such a display is an implicit government endorsement of the religious beliefs that the display represents, which sends the message that those who are not members of that religion are not full citizens.But those rulings didn’t say you couldn’t put up any such displays. Rather, they say that the government can keep them up as long as they spread around some “secular” symbols of Christmas — Santa, reindeer, candy canes, elves — to dilute the message of endorsement. This is classic O’Connor, what legal scholars refer to as the “split the baby” approach to the law where you try to find ways to keep everyone happy rather than laying down bright line rules of what is and is not allowed to provide specific guidance to policymakers and lower court judges.
The FFRF’s letter informs the township that, “It is unlawful for the town to maintain, erect or host a holiday display that consists solely of a nativity scene, thus singling out, showing preference for and endorsing one religion. The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property.” So now they either have to remove it or put up some “secular” symbols of Christmas in order to comply with those rulings. Or they could declare the grounds of the township hall to be a limited public forum and allow non-Christian groups to put up similar displays. That would be legally permissible as well. We’ll see what they do.