Published by the Freedom From Religion Foundation, Inc. FFRF.org

FFRF decries appeals court reasoning in nativity case

Vol. 38 No. 02 March 2021
The Jackson County Courthouse in Indiana displays a nativity scene during the month of December. An appeals court ruled that the nativity scene is not unconstitutional.   

FFRF criticized an appeals court ruling handed down Feb. 2 that dubiously claims a historical framework justifies a government nativity display.

Although FFRF was not party to the lawsuit, the national state/church watchdog had sent a December 2018 letter demanding removal of the Christian nativity display erected annually on the lawn of the Jackson County Courthouse in Brownstown, Ind. The request was greeted by a “save the nativity” rally with prayers and a speech by the president of the county commissioners. The county moved some figures of Santa Claus and carolers closer to the Christian devotional scene to argue that the overall impact of the display was supposedly secular.

The Indiana ACLU then filed suit on behalf of atheist Rebecca Woodring to challenge the county display of the creche, which is owned by the Brownstown Ministerial Association. U.S. District Court Judge Tanya Walton Pratt ruled in Woodring’s favor last May, writing that the scene continued to convey religious endorsement. The county, represented by the ultra-Christian Right Liberty Counsel, then took the case to the 7th U.S. Circuit Court of Appeals.

Writing the decision for the three-judge panel, which ruled 2-1 in favor of the display, was U.S. Circuit Judge Amy St. Eve, a President Trump appointee: “We conclude that the county’s nativity scene is constitutional because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas — a public holiday.”

St. Eve claimed that the district court wrongly felt itself bound by the “purpose” and “endorsement” tests based on the Lemon Test, a codification of court rulings that considers a government display constitutional if its purpose is secular and it does not appear to endorse religion. She asserted that the facts of the case must be scrutinized “under the historical approach” from a set of outlier cases dealing with governmental prayer, in which a supposed unbroken practice of congressional chaplaincies creates a justification for governmental prayer.

The appeals court decision invoked the 2019 Supreme Court ruling in AHA v. American Legion that approved a huge cross on public property in Bladensburg, Va. The 7th Circuit asserted that the American Legion decision required the court to not apply the traditional Lemon framework to nativity scene cases. Shockingly joining St. Eve was Judge Diane Wood, a President Clinton appointee considered a counterweight to the circuit’s well-known conservatism. In his vigorous dissent, U.S. Circuit Judge David Hamilton, a President Obama appointee, noted that “the religious content dominates the county’s Christmas display here” and correctly concluded, “Viewed in its entirety and in context, the display therefore sends a strong message of government endorsement of Christianity.”