Appeals Court Says Nativity Scene Outside Indiana Courthouse is Constitutional

An appeals court has ruled that a Nativity scene outside a former Indiana courthouse is constitutional, marking the latest (and most disastrous) twist in a long-running saga.

Some background is helpful here: All of this takes place in the city of Brownstown at the site of the Jackson County Courthouse. A couple of years ago, the court moved to another location nearby and the old building was converted to office space. The county’s treasurer, auditor, surveyor, and many others now work out of there.

In any case, starting around 2003, the Jackson County Commissioners approved a Christian Nativity display outside the building and it’s gone up around the holidays every year since. (Technically, it’s owned by the Brownstown Ministerial Association but it’s on government property.) There are lights nearby so that people can see it in the evenings, and that electricity is paid for by the government. Until 2018, this was unmistakably a pro-Christian display:

Viewed from the front of the Courthouse, to the right of the sidewalk, stood the lighted figures of the baby Jesus in the manger with Mary and Joseph near the child; two angels with upright trumpets on either side of the manger and animals and a man with a staff facing the mangers… Across the sidewalk are Magi with crowns, carrying gifts, pointed toward the manger and accompanied by a camel.

At some point, the display came to include Santa Claus, reindeer, and cutouts of carolers — all still promoting the Christian holiday.

That’s when the Freedom From Religion Foundation stepped in, sending a warning letter to the officials about the legal problems with this display. The county didn’t budge. They held a rally where two Commissioners spoke in favor of the display and others prayed. The display moved around a bit, but the underlying problem was still there.

Then came Rebecca Woodring, a Jackson County resident, who filed a lawsuit against the County arguing that this was government endorsement of religion.

Since the facts weren’t in question, it was up to a judge to decide whether the County’s display was legal. In a ruling released back in May of 2020, U.S. District Judge Tanya Walton Pratt said that Woodring had legal standing to bring the case and that she was right on the merits.

… 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. A picture of the Courthouse lawn shows that 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 because it is arranged to straddle the sidewalk, 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. From roughly 2000 until 2018, the display consisted solely of a Nativity scene. 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, Matt Reedy, physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche… “The reasonable observer is aware of the situation’s history and context”… 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 non-secular 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.

In short, they were putting the pro-Christian stuff right up front and relegating the more cultural aspects (like Santa) to the side, and they’ve been doing this forever, so let’s not pretend they ever cared about representing anyone but Christians.

The end result was that the County was banned from putting the same display back up in the future and the County (i.e. taxpayers) would have to pay Woodring’s legal bills (and then some). So naturally, the county appealed the decision. Oral arguments took place last November.

But that same month, the U.S. 7th Circuit Court of Appeals voted 2-1 to prevent the judge’s ruling from going into effect while they took their sweet time considering the case.

That meant the Christian display could go up in December… even if the same court ultimately agreed that it was unconstitutional.

Only one judge, Obama nominee David F. Hamilton, said even a temporary reprieve was a bad idea because there was no doubt this was illegal:

Judge Hamilton votes to deny the stay for these reasons: 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.

That last line was the kicker. If Jackson County really thought this was an emergency, they could have said so back in May. Instead, they waited until November to complain about it. They didn’t deserve the special treatment they were getting.

In any case, the Seventh Circuit has now issued its final ruling on the matter, and unfortunately, by the same 2-1 vote, they have said the Christian display is legal.

In essence, they’re citing the Supreme Court’s awful decision in American Legion v. American Humanist Association — that’s the case in which a Giant Christian Cross in Maryland was declared legal because it had been around so long that its religious meaning was no longer front and center and the GIANT CHRISTIAN CROSS was “indisputably secular.”

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.

This idiotic decision basically says that because this Christian display was around for years, we may as well treat it like it’s secular. At one point, referencing a rally and prayer show the first year the display went up, the justices pretend the Christian nature of the display is incidental!

At most, the rally and prayer show that some people in the community valued the nativity scene and felt it had religious significance. That does not call into question the County’s motive for hosting the display on courthouse grounds.

Those people felt it had religious significance… as if there could be any other reason to pray around a display of the birth of Jesus Freaking Christ.

At least Judge Hamilton dissented in no uncertain terms:

… I disagree with the majority’s result because of the specific facts: the religious content dominates the county’s Christmas display here… Viewed in its entirety and in context, the display therefore sends a strong message of government endorsement of Christianity.

But he was outnumbered here. It’s going to open the door for longstanding Christian displays on government property to remain standing — and everyone else could be shut out. No Jewish displays. No Satanic displays. No atheist displays. If Christians got a head start and no one put up a fight in the past, they will have a tough time fighting it in the future. No wonder Liberty Counsel is celebrating this government endorsement of Christianity.

The message to Christians is clear: Break the law early and often — there are a lot of you and atheists can’t sue everyone — and eventually, the courts will reward you for it.

The message to atheists is even more obvious: File lawsuits at the slightest hint of Christian Nationalism before it becomes “tradition.”

(Thanks to Brian for the link. Large portions of this article were published earlier)