6th Circuit: County's Ban of Creche On Road Median Violated Sponsor's Free Speech Rights

Satawa v. Macomb County Road Commission, (6th Cir., Aug. 1, 2012) involves a dispute over a creche that a family, each Christmas for over 60 years, has placed on a 60 foot wide median of a busy 4-lane road in Warren, Michigan. When the Freedom From Religion Foundation objected to the creche in 2008, the county ordered it removed. The county continued to deny a permit for erection of the creche, and one of the family members sued.  The court, reversing the district court in significant part (see prior posting), held that the county's action violated plaintiff's free speech and equal protection rights.  The road median here, which also contained benches, a plaque, displays and a gazebo, is (like a park) a traditional public forum.  The government may thus ban expression there only if it has a compelling interest. While compliance with the Establishment Clause would be a compelling interest, here the creche did not violate the Establishment Clause since it was a private expression of religious beliefs-- not endorsed by the government-- on property that had been opened to the public for speech. The court however rejected plaintiff's claim that in denying a permit for the creche the county itself was religiously motivated in violation of the Establishment Clause.