In Woodring v. Jackson County, Indiana, (7th Cir., Feb. 2, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of a nativity scene as part of a display on the county's historic courthouse lawn. The court said in part:
[W]e hold that the County’s nativity scene complies with the Establishment Clause. The district court thought itself bound by the “purpose” and “endorsement” tests that grew out of the Supreme Court’s decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). We hold, however, that the Supreme Court’s recent decision in American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), requires us to use a different, more historical framework to gauge the constitutionality of the County’s nativity scene. Applying American Legion, we conclude that the County’s nativity scene is constitutional because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday....
Judge Hamilton dissented, saying in part:
[T]he majority’s feints toward displacing the endorsement and purpose tests. I say “feints” because the majority ends up applying the American Legion “historical” test in a way that actually looks a lot like the endorsement test, properly understood, taking full account of the content, history, and larger context of the display. Neither this case nor American Legion should be understood as a revolution in Establishment Clause doctrine....
I disagree with the majority’s result because of the specific facts: the religious content dominates the county’s Christmas display here....
The facts and cases may be arrayed roughly along a spectrum ranging from stand-alone Nativity scenes to those that are small parts of much broader seasonal displays. There is not a sharp line. It’s not as simple as counting whether there are more shepherds and angels than elves and snowmen.... If the display is dominated by religious symbolism, with only minor or token secular symbols and symbols of other faiths, the message of endorsement calls for court intervention.
The Hill reports on the decision.
