Nativity lawsuit brings new county ordinance

Franklin County Board of Commissioners approved a “public forum ordinance” this week in response to the ongoing lawsuit over a nativity scene displayed on the county’s courthouse lawn during the holiday season.

Attorneys from the Thomas More Society helped draft the eight-page ordinance which details the uses, permitting process and permit holder’s responsibilities for the grounds surrounding the county courthouse. The county’s three commissioners passed and signed the measure Jan. 12, 2015.

According to the Thomas More Society, the ordinance will “protect the free speech rights of (county) citizens to participate in the ‘marketplace of ideas’ via public displays and events on the Franklin County Courthouse lawn.”

The ordinance comes after the Freedom From Religion Foundation Inc. filed a complaint against the county for installing a nativity scene on the courthouse lawn. Represented by the American Civil Liberties Union of Indiana, the Foundation asserted the display violated the First Amendment’s Establishment Clause of the U.S. Constitution.

Franklin County commissioners responded to the complaint by also claiming First Amendment rights. They contend the scene is protected by the Free Speech Clause of the First Amendment.

The lawsuit, Freedom From Religion Foundation, Inc., et al. v. Franklin County, Indiana, 1:14-cv-02047-TWP-DML, was filed Dec. 16 in the U.S. District Court of the Southern District of Indiana, Indianapolis Division. The parties held a telephone status conference on Jan. 8 and have been directed to file a proposed case schedule by Jan. 30. The county has until Jan. 23 to file a response to the amended complaint.

However, Peter Breen, Thomas More Society special counsel, indicated the ordinance addresses the Foundation’s concerns.

“This new ordinance provides maximum constitutional protections for the citizens of Franklin County to use their courthouse lawn,” Breen said. “With the enactment of this ordinance, the allegations of the lawsuit brought by the ACLU and Freedom from Religion Foundation are moot.”

In the ordinance, the commissioners refer to the area surrounding the courthouse as the “people’s lawn” and said the purpose of allowing private entities to use the property is to provide a forum for public discourse and foster respect for the rights of all individuals.

All county citizens will have equal access to the courthouse grounds, according to the ordinance. Users must obtain a permit, which will be valid for a maximum of 45 days; pay all fees and costs resulting from the activity or display; and indemnify and defend Franklin County against any claims that arise because of the activity or display.

Franklin County is reserving the right to refuse to issue a permit and to cancel or preempt any permitted event.

“The Board is glad to put in place this new ordinance, which protects and promotes the Free Speech rights of Franklin County citizens on their courthouse lawn,” said Tom Wilson, president of the Franklin County Board of Commissioners.

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