Michigan City Survives Holiday Display Lawsuit

     CINCINNATI (CN) – An annual holiday display of reindeer, snowmen and the nativity does not amount to an establishment or endorsement of religion, the 6th Circuit ruled.
     The Freedom From Religion Foundation first took aim at the annual nativity scene in Warren, Mich., in 2010, sending Mayor James Fouts several letters requesting removal of the display.
     When the city refused, the foundation asked the following year for the city to pair the display with a sign stating: “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.”
     Fouts fired back at the foundation with a letter that called the proposed sign “antagonistic toward all religions.”
     Fouts said it “would serve no purpose during this holiday season except to provoke controversy and hostility among visitors and employees at city hall.”
     “Your phrase that ‘Religion is but myth and superstition that hardens hearts and enslaves minds,’ is highly offensive and is not a provable statement,” Fouts added. “Likewise, your statement that there are ‘no gods’ and ‘no angels’ is also not provable.”
     The foundation and one of its members, Douglas Marshall, then filed suit, but a federal judge in Detroit shot their claims down at summary judgment.
     A three-judge panel of the 6th Circuit affirmed Monday, citing precedent that dates back to the 1984 and 1989 Supreme Court decisions in Lynch v. Donnelly and County of Allegheny v. ACLU.
     The foundation has no basis to claim that the city proved its “lack of neutrality between the secular and the religious” by rejecting the winter solstice, according to the ruling.
     “All but one of the objects in the holiday display are nonreligious,” Judge Jeffrey Sutton wrote for the panel. “Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a ‘Welcome Winter’ sign – all of them, all that is but the nativity scene – are secular. Some of these symbols allegedly are rooted in pagan traditions. … Some are connected to the winter season. And some embody the most commercial features of the holiday season. But none of these secular symbols have any roots in one faith or in faith in general.”
     Rejecting the group’s free-speech claims, the court noted that the First Amendment “prevents governments from restricting the speech of individuals; it does not empower individuals to abridge the speech of government.”
     “The guarantee thus ‘restricts government regulation of private speech; it does not regulate government speech,” Sutton wrote, quoting the Supreme Court’s 2009 decision in Pleasant Grove City, Utah v. Summum.
     In Summum, a Gnostic Christian church objected to its exclusion from a permanent display in a public park consisting of several components – including a monument of the Ten Commandments – donated by private entities.
     Summarizing the Supreme Court’s findings, Sutton noted that “the monuments amounted to government, not private, speech.”
     This was because “Pleasant Grove maintained final approval authority over every aspect of the approval process; it was selective in deciding which monuments to add to the park; and it located all of the monuments on city property,” Sutton wrote.
     “By ‘effectively control[ling]’ the message being sent in these ways, it was the government, not the donors of the monuments or anyone else, that spoke,” he added.
     Similarly in Warren, the annual holiday display amounts to government speech.
     “The display occurred on the most governmental of government properties: City Hall,” Sullivan wrote. “The city erected, maintained, took down and stored the display each year and covered the costs in doing so. The city reserved final approval of all components of the display to itself. Whether it paid for components of the display, as in some instances, or accepted donations from private organizations, as in one instance (the crèche), the city retained authority over what to include.”

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