Tuesday, December 29, 2009

Court OK's Ban of Creche on Roadway Median

In Satawa v. Board of County Road Commissioners of Macomb County, (ED MI, Dec. 28, 2009), a Michigan federal district court refused to issue a temporary injunction against the County Road Commission's decision to ban a private individual's placement of a nativity scene on the median of a busy Warren, Michigan road. A nativity scene had been displayed on the now-60 foot wide median of the 8-lane road during the Christmas season since 1945. Historical farm equipment is also on display on the median. In December 2008, the Freedom from Religion Foundation complained that the nativity scene's presence and its use of electricity provided by the municipality violates the Establishment Clause. After receiving the complaint, the Road Commission decided that the size of the display, and its proximity to the intersection, created a danger to public safety and ordered it removed because no permit had been issued for the display. In 2009, the Road Commission refused to issue a permit on the ground that this would amount to an unconstitutional endorsement of religion.

Plaintiff sued, claiming that the refusal violates his freedom of expression. (See prior posting.) Observing that this is an "extremely close case," the court analyzed a number of "public forum" cases and concluded that a median in the middle of a busy roadway is not a "traditional public forum." It further ruled that the county has a compelling interest in prohibiting placement of the creche in the median because it may impede sight lines at the intersection. Also if this structure is allowed, the county would have to permit all sorts of displays on road medians, creating safety hazards around the county. At the same time, the alternative of displaying the creche a few hundred yards away on Church property would not create any public safety concerns. Finally, the court concluded that banning of temporary structures on busy road medians would not convey a message of endorsement or disapproval of religion. Yesterday's Detroit News reported on the decision.