By Michael V. Hannigan
The News Staff
ATHENS – The media and community response was swift after news broke that a group was trying to force Henderson County to remove its nativity scene.
So was the county’s answer.
Less than two days after receiving a letter from the Freedom From Religion Foundation (FFRF), which claims the nativity scene located on the courthouse lawn is illegal, County Attorney Clint Davis answered by writing, “Henderson County believes that it is in complete compliance with the requirements of the Constitution and acting very much in accord with prior U.S. Supreme Court rulings.”
The letter from Davis is dated Dec. 7 and is addressed to the FFRF attorney Stephanie A. Schmitt.
Wednesday night, Henderson County Judge Richard Sanders explained the county’s position, saying, “Because we have other decorations on the square other than the nativity, we feel we are in compliance with federal law.”
In a letter received by the county Monday afternoon, the FFRF said that it was acting on the behalf of an anonymous county resident to “… request that, as the Henderson County Commissioners, you take immediate action to ensure that no religious displays are on city or county property.”
The FFRF letter said, “The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property.”
In his letter, Davis pointed out the nativity scene is not the sole focus of the display.
“In addition to the nativity scene, we have Santa Clauses (multiple), a Santa house, elves, wreathes, garland, trumpeters, dwarfs, snowmen, reindeer, white tail deer, Christmas Trees, Christmas lights, and a plethora of other decorations surrounding our courthouse,” he wrote.
Davis also wrote, “… the Supreme Court … made clear that, ‘the goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.’”
Thursday, FFRF Co-president Annie Laurie Gaylor told The Malakoff News that she disagrees with Davis’s answer.
“We don’t buy it,” she said.
Although Gaylor admitted that the FFRF did not know about the secular decorations on the square when it issued its first letter, she said that is really a moot point now. Gaylor said the fact that a private, outside agency (the Light Up Athens Committee) is given permission to decorate the square makes this a case of “public forum.”
Gaylor said that using public property this way constitutes a public forum, which would require the county to allow others with different religious beliefs to have equal access to the Courthouse Square.
There is no process in place to allow residents to decorate the square. Light Up Athens makes a written request to the county judge each year to be allowed to decorate.
Henderson County Commissioners’ Court has not had the opportunity to address the issue officially yet. The next meeting of the commissioners is Tuesday, Dec. 13.
The complete text of the county’s answering letter follows (the FFRF letter can be found at the end of our previous story).
December 7, 2011
Dear Ms. Schmitt:
I am the County Attorney for Henderson County, and on behalf of Henderson County, am responding to your letter of December, 1, 2011. I believe that your letter was written based upon the incorrect factual premise that the nativity scene was the only seasonal display on county grounds. In addition to the nativity scene, we have Santa Clauses (multiple), a Santa house, elves, wreathes, garland, trumpeters, dwarfs, snowmen, reindeer, white tail deer, Christmas Trees, Christmas lights, and a plethora of other decorations surrounding our courthouse. I am not sure how familiar you are with Athens or Henderson County, but Athens is centrally located in the County and our courthouse is centrally located within the City of Athens. These displays are secular in purpose and placed in our County in a visible location to create a festive atmosphere for the celebration of Christmas. As I am sure you are aware, the U.S. Supreme Court has upheld these types of displays and we believe that we are in compliance with the guidelines set forth in Lynch v. Donnelly and the test created in Lemon v. Kurtzman by the U.S. Supreme Court. More recently, the Supreme Court reinforced those 1980 decisions in Salazar V. Buono, and made clear that, “the goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.” Salazar v. Buono, 130 S. Ct. 1803, 1817-20 (2010).
In your letter, you primarily rely upon the case of County of Allegheny v. ACLU of Pittsburg, however I believe that the facts here are clearly distinguishable from the facts of that case. In Allegheny, it was the placement of the nativity scene that was the basis for the Court’s ruling that it was an unconstitutional endorsement of religion. In that case, the nativity scene was placed on the grand staircase of the Courthouse at the entrance of the Courthouse. Henderson County’s Courthouse does not have a grand staircase or main entrance, as it has four entrances on each side of the Courthouse and the placement of the nativity scene is not near any of the entrances, but rather on the outer corner of the courthouse square, in amongst the other decorations listed above. As such, I do not believe that it is comparable to the facts in the Allegheny case, and I do not believe that it creates an establishment clause violation.
I would close by reiterating that Henderson County believes that it is in complete compliance with the requirements of the Constitution and acting very much in accord with prior U.S. Supreme Court rulings. I would hope that this will clarify the factual misconception that your letter and inquiry were based upon, however, should you still have questions or wish to discuss this matter further, please do not hesitate to contact me.
Very turly yours,