Attorney Fee Award to Freedom from Religion Foundation of $342K Recommended.

In another demonstration of the high cost to governmental entities of litigating First Amendment claims, a Texas federal magistrate judge in Freedom from Religion Foundation v. Abbott, (WD TX, Nov. 27, 2023) has recommended an award of attorneys' fees to FFRF of $342,566 (plus costs of $3,957). At issue in the case was the removal of FFRF's "Bill of Right Nativity Exhibit" from the Texas state capitol. The case twice made its way to the 5th Circuit Court of Appeals (see prior postings 1, 2).

Creche Displays in State Capitols Are Widespread This Year

According to the Thomas More Society, nativity scenes are being displayed in most state Capitol buildings this year.  The organization's press release says in part:

Celebrations of the Savior’s birth are scheduled with 43 State Capitol Nativity Scenes across America this Christmas. The Thomas More Society and the American Nativity Scene are helping a growing number of private citizen groups across the nation to display Biblical manger scenes on government property this Christmas. State Capitols in Alaska, New York, Utah, and Virginia are scheduled to feature the traditional display of the Holy Family with Baby Jesus in the manger for the first time this year....

 “Many erroneously assume that government entities are prohibited from allowing a religious display,” explained Thomas More Society Vice President and Senior Counsel Thomas Olp. “The law is clear. Government entities may erect and maintain celebrations of the Christmas holiday – or allow citizens to do so on government property, including nativity scenes, as long as a crèche’s sole purpose is not to promote its religious content, and it is placed in context with other symbols of the season as part of an effort to celebrate the public Christmas holiday through traditional symbols. We pray that the nativity scenes of the Christmas season will help to foster a sense of unity and peace on earth.”

Tom Brejcha, Thomas More Society President and Chief Counsel, echoes the importance of displaying the nativity scenes, especially in times of social or political controversy. He stated, “The Christmas message highlights the inherent dignity of each and every human being.”

American Nativity Scene's website lists which state capitols feature creche displays, and which do not. It also contends that in addition to their religious significance, Nativity Scenes convey many secular messages:

These manger scenes are celebrations of birth, new life, and renewal and hope bound up with succeeding generations.  As well, they celebrate the beauty of the family, of mother, father and child.  That the shepherds attended the event with their animals bespeaks the natural bonds that unite all men and women, within the larger human community, and together with all other living beings, our fellow creatures. 

FFRF Wins Right To Display "Bill of Rights Nativity Scene"

In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:

Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.

The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.

7th Circuit OK's Nativity Scene In Christmas Display

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.

Court Denies Preliminary Injunction Against Nativity Scene

In Lamunion v. Fulton County, Indiana, (ND IN, Nov. 25, 2020), an Indiana federal district court refused to grant a preliminary injunction against a nativity display on the Fulton County courthouse lawn. The court explained:

[I]n 2018, [plaintiff] sued Fulton County, seeking declaratory and injunctive relief against the display. He did not seek preliminary injunctive relief when he filed his complaint, or during the next holiday season. Recently, however, almost two years after filing his complaint, he moved for a preliminary injunction prohibiting the county from erecting the display this year....

[P]laintiff contends that the display’s constitutionality would depend on a fact-intensive, totality-of-the-circumstances inquiry from the viewpoint of a reasonable observer. But the Court has only a couple snapshots of the display to consider. It is difficult from those few pictures to understand the context of the display and the way it would appear to a reasonable observer.... 

Resolving those difficult issues, while also giving due respect to the public’s interest and the sincere and deeply held convictions on both sides, requires a degree of care and deliberation simply not possible in the mere days the plaintiff has given the Court to rule.... The plaintiff asks this Court to pass judgment on a fifty-plus year old display in the span of a few days.... [E]ven assuming the plaintiff has established at least the minimum likelihood of success, the Court could not find that a preliminary injunction is warranted when weighing the preliminary injunction factors as a whole.

7th Circuit Stays, Pending Appeal, Injunction Against Creche On County Property

 As the holiday season approaches, the U.S. 7th Circuit Court of Appeals by a vote of 2-1 in Woodring v. Jackson County, Indiana, (7th Cir., Nov. 17, 2020), granted a stay pending appeal of a district court order barring the display of a creche on the historical county courthouse-- now county office building-- lawn. The appeal on the merits in the case was argued before the 7th Circuit last week. (See prior posting.) Judge dissented, saying:

The relief granted by the stay violates the Establishment Clause. The dominant religious content of the display communicates to a reasonable observer a governmental endorsement of Christianity, a matter as to which governments must remain neutral. In addition, the county waited so long to seek this stay that it cannot plausibly claim it needs emergency relief.

Liberty Counsel issued a press release (including a photo of the display) announcing the grant of the stay.

7th Circuit Hears Oral Arguments In Creche Case

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Woodring v. Jackson County, Indiana. (Audio of full oral arguments.) In the case, an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December. (See prior posting).  Courthouse News Service reports on yesterday's oral arguments.

Court Refuses Stay of Order On Creche Display

In Woodring v. Jackson County, Indiana, (SD IN, Nov. 3, 2020), an Indiana federal district court refused to stay its final judgment pending appeal in a case challenging the annual display of a creche on the county courthouse lawn.  The court said in part:

Because the crèche straddles the sidewalk subdividing the lawn and the more-secular figures are placed on the periphery, the venerable magi and hallowed manger share center stage. Id. Since the primary focus of the display is a celebration of the birth of Jesus Christ, a reasonable observer would believe that Jackson County was endorsing a particular religion, that is, Christianity. Id. Moreover, the display—which had consisted solely of the Nativity scene for almost twenty years—expanded to include the secular Christmas figures only after Jackson County received a letter from the Freedom from Religion Foundation questioning whether the display was constitutional.... A reasonable observer aware of this "history and context" would view the addition of the ancillary figures as a reactionary effort to obscure the display's religious essence.

(See prior related posting.)

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

Nativity Scene On Indiana County Building Property Held Unconstitutional

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices.  The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here ... the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers....

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display.... Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn.... The crèche is the vast majority of the display ... making it appear much larger than the solitary Santa figure.... The carolers have been placed in the back of the display, lessening the attention they would draw from an observer....

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all.... But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners ... physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche.... The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

Settlement Reached In Challenge To Terms of Indiana County's Open Forum Ordinance

On Friday the Thomas More Society announced that a settlement agreement (full text) has been reached in Freedom From Religion Foundation v. Franklin County, Indiana.  The suit followed the adoption of a county ordinance that, in order to insulate from challenge the display of a nativity scene, made the county courthouse a public forum for all types of expressive activities. In the suit, FFRF and the Satanic Temple objected to a provision in the ordinance that limits the open forum to county residents. (See prior posting.) Under the settlement agreement, the ordinance will be amended to merely require a local contact who works or resides in either Franklin county or an adjacent Indiana county for any unattended display.

Town Brings Back Nativity Scene-- This Time With Frosty and Reindeer

Last year, the town of Dallas, North Carolina moved its traditional nativity scene from the courthouse lawn to private property down the street under threat of a lawsuit from the Freedom From Religion Foundation. However many town residents were angry over the move.  So, according to WSOCTV News yesterday, this year a nativity scene is back on the courthouse lawn.  It is larger than the former one, but also includes figures of Frosty the Snowman and reindeer.  The city attorney told the town's Board of Aldermen that under Supreme Court rulings, a nativity display is permitted if it includes secular figures. FFRF still contends that the display is improper.

Localities Adjusting Nativity Displays To Avoid Constitutional Problems

As the Christmas season approaches, cities and counties that traditionally placed Nativity Scenes on government property are now responding to constitutional challenges to them. Either in response to demand letters or to actual litigation, one of two types of responses is typical: (1) transfer the nativity scene to private ownership and display of  on private property; or (2) surrounding the nativity scene with numerous secular displays.

In Wadena, Minnesota, the nativity display previously placed in a public park was sold to the Wadena Ministerial Association for $25 and will be placed on a lawn across from the town's hospital.  Forum News Service reported yesterday that a town resident is also inviting others to display nativity scenes, attempting to break the record for the most creches displayed in one area.

In Franklin County, Indiana, the county avoided losing a lawsuit (see prior posting) by adopting an ordinance allowing county resident to erect their own displays on the courthouse lawn alongside the nativity scene. AP reported yesterday that the county has approved 9 displays, including one of George Washington, Benjamin Franklin and Thomas Jefferson huddled around a manger holding the Bill of Rights.

UPDATE: Fox19 reports that the banner put up by Freedom From Religion Foundation proclaiming "There are no gods, no angels, no heaven or hell" was stolen from the Franklin County Courthouse grounds over the Dec. 5 weekend.

Arkansas County's Nativity Scene Violates Purpose Prong of Lemon Test

In American Humanist Association v. Baxter County, Arkansas, (WD AR, Nov. 12, 2015), an Arkansas federal district court held that a privately-owned nativity scene that has been erected on the Baxter County Courthouse lawn for the past 40 years violates the Establishment Clause, despite changes made in recent years to attempt to avoid this conclusion.  The display has long been accompanied by a Christmas tree, and in recent years by Santa Claus and reindeer figures. In 2014, the county leased the land on which the display sits for $1 to the Chamber of Commerce for the specific purpose of erecting a nativity display. It also added a sign with a disclaimer saying that the county is saluting liberty, and the display is owned and erected by private citizens.  The court held that whatever the relevance of these details under the Lemon test on whether the display has the effect of promoting religion, these details are irrelevant when the purpose of the display is predominately religious. The court said in part:

The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas." ... [Also] there is no dispute that in December 2013, Judge Pendergrass [the County CEO] denied at least two separate requests to install a banner near the creche stating "Happy Solstice."

The court in its judgment entered a declaratory judgment and injunction, and awarded $1 in nominal damages, against the county and its CEO in his official capacity. It held that the county CEO in his personal capacity had qualified immunity from a damage claim.  The court's injunction provides that  defendants must either

(1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.

Ozarks First reports on the decision.

Nativity Scene Challenge Dismissed After New Law Creates Neutral Forum

In Freedom From Religion Foundation, Inc. v. Franklin County, Indiana, (SD IN, Sept. 23, 2015), an Indiana federal district court dismissed a suit challenging the annual display of a nativity scene on the lawn of the Franklin County courthouse.  After the suit was filed, the county enacted a new ordinance providing a content neutral system for erecting private displays on the courthouse lawn.  The court held that this eliminated plaintiffs' claim for injunctive relief.  While plaintiffs still sought nominal damages, the court held:

By seeking only nominal damages, plaintiffs concede ... that they suffered no actual injury, or at least that the injury they claim cannot be redressed by an award of actual damages; thus appearing to have no standing.

Thomas More Society issued a press release announcing the decision.

Groups Challenge Residency Limits In Courthouse Open Forum Law

As previously reported, last December the Freedom From Religion Foundation (FFRF) sued Franklin County, Indiana, challenging a Nativity Scene placed on the Courthouse lawn.  The suit was dropped after the county enacted a law making the county courthouse a public forum for all types of expressive activities. (See prior posting.)  However this week, FFRF and the Satanic Temple have filed a new lawsuit against the county charging that the open forum law still violates their free expression rights.  The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 3/24/2015), contends that the provision in the open forum law limiting it to Franklin County residents is not narrowly tailored to further a substantial governmental interest.  Both plaintiffs were denied permits for displays. FFRF had applied to place a display of several cut-out figures on the Courthouse lawn from Nov. 29, 2015 to Jan. 6, 2016 to celebrate the December 15th "nativity" of the Bill of Rights. Satanic Temple wanted to erect a three-dimensional sculpture during the same time period.  FFRF issued a press release announcing the filing of the lawsuit.

Indiana County Fights Creche Suit By Enacting Open Forum Law

The Batesville (IN) Herald-Tribune reports that last week the Franklin County, Indiana Commissioners passed Ordinance 2015-02 to create a public forum on the county courthouse grounds permitting displays, demonstrations, exhibits, rallies and other expressive activities without regard to viewpoint under a neutral permit process.  The action was taken in response to a lawsuit filed against the county last month challenging the constitutionality of a life size Nativity Scene displayed on the courthouse lawn. (See prior posting.)

UPDATE: According to WLWT, on Feb. 10 plaintiffs dropped the lawsuit.

Lawsuit Challenges Courthouse Lawn Nativity Scene

Despite a disclaimer placed on the courthouse lawn Nativity Scene in Baxter County, Arkansas (see prior posting), this week a federal court lawsuit was filed challenging the display on Establishment Clause grounds.  The complaint (full text) in American Humanist Association v. Baxter County, Arkansas, (WD AR, filed 12/23/2014), alleges that: "Religious and specifically Christian elements overwhelmingly dominate the County’s annual Nativity Scene display." It contends that a purported 2-month lease of the property on which the display stands to the Chamber of Commerce for $1 is "a sham attempt to insulate the County from responsibility...." Last year the County refused to allow two county residents to place a Happy Solstice Banner near the Nativity Scene. AP reports on the lawsuit.

Suit Challenges Creche On Indiana Courthouse Lawn

The Freedom from Religion Foundation, through the Indiana ACLU, filed suit in federal district court yesterday challenging the constitutionality of a life-size city-owned Nativity Scene on the lawn of the Franklin County Courthouse in Brookville, Indiana. The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 12/16/2014), (which includes a photo of the display) says that while the city also displays a series of plastic reindeer on the lawn, they are not part of the same display and are barely visible during the day when they are not lighted. Both the ACLU and FFRF have issued press releases announcing the filing of the lawsuit.

UPDATE: Under an agreement reached by the parties on Dec. 19, the Nativity Scene will remain up only until the day after Christmas, and FFRF will drop its request for a preliminary injunction. According to a press release by Thomas More Society, litigation on plaintiffs' request for a permanent injunction will now continue on a more normal time schedule.