Written by Don Byrd
It’s Christmas in August at the Sixth Circuit U.S. Court of Appeals, which issued a nativity scene ruling today that made two key points for those of us that follow this sort of thing. The case involved a scene depicting the birth of Christ, constructed and placed in the grassy median of a busy intersection every December in Macomb County, Michigan. After a complaint from the Freedom From Religion Foundation, the County, fearing a legal challenge, ordered the creche removed and rejected the owner’s application for a permit, saying the appearance of religious endorsement would make the placement in the median a church-state violation. Seeking to reinstate the nativity scene, the plaintiff claimed that the County’s decision violated Equal Protection, as well as his free speech rights and religious freedom guarantees under the Establishment Clause.
The District Court dismissed all the claims, but today the Appeals Court reinstated the free speech and equal protection claims, while affirming the religious freedom dismissal.
Those 2 takeaways?
First, the unanimous panel emphasized that the County’s Establishment Clause fears were unfounded. A display in a public forum (which this particular median was, according to the Court) may not be denied simply because it is religious in nature. The County attempted to argue – and convinced the District Court – that the denial was based on concerns for traffic safety, not the content of the message. But the ruling today (pdf) found the safety argument a sham in light of the facts (the safety issue was not raised until the litigation began).
Time and again, the Supreme Court and this court have considered cases where a private individual seeks to express religious views in a public forum. Where, as here, “[t]he State did not sponsor [the religious] expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups,” the government would not violate the Establishment Clause by granting the permit. The Board’s interest in preventing an Establishment Clause violation, therefore, was not compelling. Its decision to deny the permit does not pass muster under strict scrutiny.
Second, the Court affirmed an important principle: To insist on religious neutrality in government is not an endorsement of non-religion in violation of the Establishment Clause.
To deny the permit because of the crèche’s religious message, [the Plaintiff] claims, was to express an official policy disfavoring religion. This argument has some intuitive appeal. But it rests on a sleight of hand. The purpose of adhering to the Constitution has nothing to do with religion. The Board’s bad guess—or bad legal advice—about the constitutional implications of Satawa’s permit, without more, does not show a purpose to favor or disfavor religion. Nor is there any evidence of animosity toward religion in the record. To the contrary, Gillet instructed Hoepfner, who had sought legal advice from outside counsel, to “obey the law.” The Board’s predominant purpose was the secular purpose of acting constitutionally.
