Disputed Nativity scene will stay up until Dec. 26

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A county in southeastern Indiana reached an agreement Friday with a group suing to force the removal of a Nativity scene on the courthouse lawn that will allow the decades-old display to remain in place through Christmas.

Attorneys for Franklin County and the American Civil Liberties Union of Indiana came to the agreement following a Friday hearing before a federal judge on the ACLU's request for a preliminary injunction seeking the display's removal.

The lawsuit filed Tuesday on behalf of the Madison, Wisconsin-based Freedom from Religion argues that the display in Brookville, about 70 miles southeast of Indianapolis, is unconstitutional.

The suit contends that the privately owned nativity scene erected each winter by citizens in Brookville "represents an endorsement of religion and has the principal effect of advancing religion" and therefore violates the First Amendment.

Under the agreement reached Friday, the Nativity display that's been erected on the lawn each winter for more than a half-century will be taken down Dec. 26 and the Freedom from Religion Foundation will drop its preliminary injunction request.

But the group's lawsuit against the county will continue, said ACLU of Indiana senior staff attorney Gavin Rose.

"The display has been up for more than 50 years and obviously there's still a constitutional issue. This just takes the immediacy out of the issue," he said.

Peter Breen, an attorney with the Thomas More Society — a Chicago-based public interest law firm that's representing the county in the dispute — said he and his clients are pleased with the agreement.

"The parties will now litigate the case on a normal schedule, without the threat of an emergency injunction forcing the removal of the nativity scene just before Christmas," he said in a statement. "We will continue working to protect the First Amendment rights of the people of Franklin County as they express themselves in the public forum in front of their courthouse."

Rose told U.S. District Judge Tanya Walton Pratt during Friday's hearing that the display that includes figures of the Christ child, Mary and Joseph has an "undeniable" religious significance. And he noted that taxpayers pay for the electricity that's used to light the nativity so that it's visible at night.

Pratt had agreed Friday morning to continue until Monday the county's presentation in the preliminary injunction request. Rose said the parties will inform the court that Monday's hearing is no longer needed.

The Freedom from Religion Foundation agreed to drop its preliminary injunction request because there was little time for Pratt to consider the complaint and briefs in the case and make a decision next week, Rose said, and now the parties can "litigate the issue more fully after this year."

Rose said his clients hope to make this the final year the Nativity scene is displayed.

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