Indiana County Defends Courthouse Nativity Scene at Seventh Circuit

CHICAGO (CN) — The Seventh Circuit heard arguments Thursday over whether an Indiana county’s Christmas nativity scene on courthouse grounds violates the Constitution’s ban on state-sanctioned religion.   

A December 2018 lawsuit filed by the Indiana ACLU on behalf of Jackson County resident Rebecca Woodring claims the county is endorsing a religion by allowing an overtly religious nativity scene on the front lawn of the courthouse.

The nativity scene, also referred to as a creche, is displayed during the Christmas season and includes a manger with a depiction of baby Jesus and other symbols of Christianity.

After receiving complaints about the nativity scene, according to the complaint, Jackson County placed a figure of Santa Claus and Christmas carolers near the scene, but Woodring claims the gesture does little to lessen the appearance that the county is endorsing the Christian religion.

In April, U.S. District Judge Tanya Pratt in New Albany ruled in favor of Woodring and found the nativity scene was first put forth for a religious purpose.

“The court holds that Jackson County’s nativity scene violates the First Amendment’s establishment clause. Jackson County appears to endorse a religion—Christianity—and lacks a secular purpose for displaying the nativity scene,” wrote Pratt, a Barack Obama appointee.

The county appealed that ruling to the Chicago-based Seventh Circuit, which heard roughly 40 minutes of oral arguments Thursday morning. The three-judge panel focused on two major issues – whether Woodring has standing to bring her claims and whether the nativity scene is unconstitutional.

Attorney Horatio Mihet represented Jackson County and argued that Woodring does not have standing to bring the case. The judges pressed him on this claim, pointing out that Woodring lives in the community and said she has encountered the nativity scene.

“It is clear from the record in this case that the plaintiff lacks standing,” Mihet said, “because she is merely an offended observer who has only a generalized grievance and a psychological injury.”

Woodring’s attorney Kenneth Faulk countered that his client’s numerous encounters with the nativity scene give her standing.

“Having to confront this as she goes about her everyday life, including fulfilling her legal obligations … I don’t think there’s any question as to injury,” Faulk said.

The hearing then moved on to the constitutionality of the display, and how similar the case was to a 2019 U.S. Supreme Court decision that held a World War I monument in Maryland featuring a cross can stay in place because the cross has taken on other secular significance.

Faulk argued that the ruling in that case is not relevant because the nativity scene in question is different in nature than the monument.

“It doesn’t apply because we are not talking about a long-standing monument,” Faulk said, adding that the nativity scene has not transcended its original religious meaning.

U.S. Circuit Judge Diane Wood, a Bill Clinton appointee, questioned this response and sought clarification of Faulk’s argument.

“You are clearly hanging your hat on the fact that this creche is only a little more than 15 years old, even though creches have been around the United States since before there was a United States, indeed around the world,” Wood said.

Faulk agreed, and said that technically the nativity scene could be considered even younger because it is only in place for five months a year compared to the visibility of a permanent monument.

On the issue of whether the county is endorsing Christianity by displaying the nativity scene, U.S. Circuit Judge David Hamilton, an Obama appointee, asked Mihet if the scene could be viewed as culturally distinct from religion.

“It is when they are put together in a display that incorporates all of the other aspects of the holidays,” Mihet said.

Faulk disagreed, pushing back on the idea that a nativity scene could be interpreted as anything but religious.

“No one has made the creche a trademark, a creche is a clear religious symbol. It always has been and always will be,” Faulk said.

U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, rounded out the panel. The judges did not indicate when they would issue a ruling.

Jackson County also wants to pause the lower court’s ruling for the upcoming holiday season as the Seventh Circuit appeal is pending. That issue was only briefly addressed Thursday, with Faulk saying he and Woodring will respond to the county’s request soon.

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