(UPDATE: Added text of letter from Freedom From Religion Foundation at end of story)
(UPDATE 2: Adds quotes from Freedom From Religion Foundation Co-president. Rewrites for clarity.)
By Michael V. Hannigan
ATHENS – The Freedom From Religion Foundation, based in Wisconsin, sent a letter dated Dec. 1 to Henderson County commissioners saying the nativity scene located on the courthouse lawn is illegal.
“We request that, as the Henderson County Commissioners, you take immediate action to ensure that no religious displays are on city or county property. Please inform us in writing of the steps you are taking to remedy this First Amendment violation so that we may notify our complainant,” reads the letter.
According to the letter, the complainant is “a concerned area resident and taxpayer” of Henderson County. The resident is not named. The FFRF claims to represent 800 Texans.
Commissioners did not address this issue in open session today, but afterward a majority of the court told The Malakoff News they had no intention of moving the nativity scene based on the letter. Not all commissioners had the opportunity to comment.
For now, County Judge Richard Sanders laid down the county line when he said, “They are going to have to make us move it.”
One commissioner did point out, however, that this could be a no-win situation for the county. Depending on how far the FFRF wants to push this, he said, the county could be forced to chose between taking down the nativity scene and provoking a vast majority of the residents to anger, or spending tens of thousands of dollars the county doesn’t have to fight a lawsuit.
The letter outlines the FFRF’s legal reasoning for wanting the nativity scene removed: “The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property.”
According to FFRF, the fact that the nativity scene is not actually owned by the county is not relevant. The nativity scene and all the secular decorations on the square are displayed by the Light Up Athens Committee.
“When the county allows this manger scene to be created, which depicts the legendary birth of Jesus Christ, it places the imprimatur of the county government behind the Christian religious doctrine,” reads the letter.
After being told the county does not own the nativity scene Tuesday, FFRF Co-president Annie Laurie Gaylor told The Malakoff News that allowing an outside agency to use public property to display the nativity scene “opens up a public forum.”
Gaylor said that everyone has to have access to the public forum, which would require the county to have a permitting process in place. That way, someone with a different religious belief would have equal access to the Courthouse Square.
Gaylor said the FFRF would be sending open records requests to the county regarding permitting for the Christmas display.
Carol Morton of the Light Up Athens Committee Tuesday confirmed there is no permitting process. “We always have permission, but have never had a permit,” she said.
According to Gaylor, the Henderson County nativity scene is one of 12 the FFRF is currently working to eliminate. Last year, the foundation targeted more than 35 locations, she said.
She said the FFRF doesn’t normally go to court over nativity displays “because the law is clear.” She said the relevant Supreme Court decisions came in 1983 and 1989.
“This (the Henderson County nativity scene) is clearly in violation and they need to change it,” Gaylor said.
Text of letter from Freedom From Religion Foundation:
Madison, WI, 53701
It is our information and understanding that a large nativity scene is on display at the Henderson County Courthouse and that it is the only seasonal display on the grounds (see photo enclosed). It is unlawful for the County to maintain, erect, or host this nativity scene, thus singling out, showing preference for, and endorsing one religion. The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property. See Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1983).
In County of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989), the Supreme Court held that a county government’s creche displayed in the county courthouse was an unconstitutional endorsement of religion. The Court stated,
“Lynch v. Donelly, confirms, and in now way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the creche in the county courthouse has this unconstitutional effect.” Id. at 621.
The court further determined that the placement of the creche on the Grand Staircase of the county courthouse contributed to its illegality because “no viewer could reasonably think it occupies this location without support and approval of the government.” Id. at 599-600. Moreover, the Court found that the nativity scene “sen[t] an unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche’s religious message.” Id. at 600.
It is irrefutable that the creche is a religious, Christian symbol. See Lynch v. Donnelly, 465 U.S. at 711 (Brennan, J. dissenting)(stating that the creche is a “re-creation of an event that lies at the heart of the Christian faith”). Allowing the display of an inherently Christian message on government property unmistakably sends the message that Henderson County and the City of Athens endorse the religious beliefs embodied in the display.
When the County allows this manager scene to be created, which depicts the legendary birth of Jesus Christ, it places the imprimatur of the County government behind the Christian religious doctrine. This excludes citizens who are not Christian – Jews, Native American religion practitioners, animists, etc., as well as the significant and growing portion of the U.S. population that is not religious at all (15% of adults), including complainants and taxpayers in Henderson County. As the Court said in Amancio v. Town of Somerset, “[To] insist that government respect the separation of church and state is not to discriminate against religion, indeed it promotes a respect for religion by refusing to single out one or two creeds for official favor at the expense of all others.” Amancio v. Town of Somerset, 28 F.Supp.2d 677, 681 (D. Mass. 1998).
There are ample private and church grounds where religious displays may be freely placed. Once the government enters into the religion business, conferring endorsement and preference for some religions over others, it strikes a blow at religious liberty, forcing taxpayers of all faiths and of no religion to support a particular expression of worship.
We request that, as Henderson County Commissioners, you take immediate action to ensure that no religious displays are on city or county property. Please inform us in writing of the steps you are taking to remedy this First Amendment violation so that we may notify our complainant.
Stephanie A. Schmitt
(The Malakoff News did not get a copy of the enclosed photo.)