Jackson County asks 7th Circuit to allow Christmas Nativity scene display

Jackson County is appealing a federal court ruling that a Christmas Nativity scene display on the courthouse lawn, shown here in a photo submitted with court filings, violates the First Amendment Establishment Clause.

The legal battle over the constitutionality of a Jackson County Christmas display on public property is continuing in federal court, with advocates for a Nativity scene urging the 7th Circuit Court of Appeals to overturn a lower court injunction.

The contested Nativity scene sits on the lawn of the Jackson County Courthouse in Brownstown. In April, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana enjoined the display of the Nativity, finding it violated the Establishment Clause.

But the county, joined by the Brownstown Area Ministerial Association and the First Liberty Institute, is asking the 7th Circuit to overturn the injunction. Under recent U.S. Supreme Court precedent and given the historic context of the creche, they argue, the display does not constitute a government endorsement of religion.

“Here, the County permits the Brownstown community to showcase on the courthouse grounds a privately-owned and -maintained Display in which the nativity is but one component, alongside numerous non-religious components,” the county wrote in its appellant’s brief. “The County’s purpose is not to promote the nativity scene’s religious significance or religion in general but to offer the local community a public place to celebrate all aspects of the holiday season. A reasonable observer with knowledge of those relevant facts and circumstances would not perceive the nativity integrated into an overall Display to be a governmental endorsement of Christian beliefs.”

The case, Rebecca Woodring v. Jackson County, Indiana, 20-1881, was brought by Seymour resident Rebecca Woodring, an atheist who believes the government should not be involved in religious activity. According to the county, Woodring had never seen the courthouse Nativity scene until 2018, when she learned on Facebook that the Freedom From Religion Foundation had written a letter to the county, warning that the Nativity display was unconstitutional.

“That same day or the next, Woodring intentionally drove to the courthouse grounds for the express and sole purpose of seeing the Display for herself,” the county wrote. “She had no business at the old courthouse, and thus she did not even get out of her car; she merely drove past the courthouse grounds to see and be offended by the Display.”

Woodring then filed suit and survived a motion to dismiss before succeeding on a cross-motion for summary judgment entering the injunction.

But in entering that injunction, both the Brownstown Area Ministerial Association, which purchased the creche, and the First Liberty Institute say Pratt utilized the wrong test.

“Following the Supreme Court’s lead, the three circuits that have since confronted religious display cases have rejected (Lemon v. Kurtzman) and applied (American Legion v. American Humanist Association),” the ministerial association wrote in an amicus brief. “But the district court here forged its own path, concluding that ‘American Legion does not offer its own test for dealing with these types of cases’ and applying Lemon instead. This was error.”

Under American Legion — the 2019 decision upholding the constitutionality of the Bladensburg Cross in Maryland — the Jackson County creche has a presumption of constitutionality because of its “longstanding” and “established” religiously expressive practice, the amici argue. The display dates back to at least 2003, fitting in with the “long tradition” of the government acknowledging “the role religion plays in the lives of (its) citizens by … recognizing and celebrating Christmas.”

In Jackson County, this recognition also features a display of Santa and carolers next to the Nativity scene – a configuration implemented after the letter from the Freedom From Religion Foundation. Forcing the county to remove the Nativity while allowing the secular Christmas symbols to remain, the amici argue, would be hostile toward religion.

“Indeed, parsing the relative size and placement of various items in a display presents precisely the sort of ‘daunting’ analysis American Legion avoided,” First Liberty Institute wrote in its amicus brief.  “Such a process also sends a message of hostility toward religion, suggesting that religious expression can only be present if minimized.”

What’s more, the county noted in its brief that the display, though purchased by the Brownstown Area Ministerial Association, is maintained by the local Lions Club. Additionally, it was the local Chamber of Commerce, not a religious organization, that asked for permission to display the creche at the courthouse.

Setting the merits aside, the county and amici say Woodring lacks standing to bring her case. Though Pratt determined Woodring was injured when she had to drive by the courthouse display to get to the nearby judicial center, the county argued the creche cannot even be seen at the judicial center.

“The district court compounded its error by not considering the map in the record, which indisputably shows the practicability of the alternate driving route from Seymour to the judicial center,” Jackson County wrote. “To be sure, that map shows that the alternate route would impose on Woodring no additional burden or inconvenience even if she had taken it. But Woodring plainly admitted that she never altered her behavior, including her driving routes.”

Also, the amici argued the decision in American Legion eliminated the concept of “offended observer” standing supported by Lemon.

“But American Legion presumes the opposite — it presumes that longstanding, religiously expressive symbols and practices are constitutional and allowed in the public square. The Constitution does not ‘require eradication of all religious symbols in the public realm’ or ‘oblige government to avoid any public acknowledgement of religion’s role in society,’” First Liberty Institute wrote, quoting Salazar v. Buono, 559 U.S. 700, 718-719 (plurality.)

“Accordingly, dismantling a Display that has been featured for nearly two decades will ‘lead the law to exhibit a hostility toward religion that has no place in [this Court’s] Establishment Clause traditions,’” the county concluded, quoting Van Orden v. Perry, 545 U.S. at 704 (Breyer, J., concurring in judgment) (2005). “… Indeed, to hold, as the district court did here, that the government must reject passive displays that reference religion or religion’s influence on national traditions undermines one of the ‘basic purposes’ of the Establishment Clause: to avoid ‘divisiveness based upon religion.”

The county is represented by the Orlando-based Liberty Counsel, while Woodring is represented by the American Civil Liberties Union of Indiana. Woodring has not yet filed any appellate documents.

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