Written by Don Byrd
A unanimous panel of the 6th Circuit today affirmed the constitutionality of the yearly Nativity Scene displayed by the city of Warren, Michigan because it is “accompanied by…secular and seasonal symbols.” The ruling dismisses a challenge by the Freedom From Religion Foundation that argued the display improperly promoted and established religion, and asking for the inclusion of an anti-religious message.
Some key quotes from the opinion (pdf), rejecting FFRF’s argument and request (citations removed):
Happily for us, much of the “line-drawing” with respect to holiday displays has already been done. Pawtucket, Rhode Island, created a holiday display that included a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, a clown, an elephant, a teddy bear, colored lights, a large “Seasons Greetings” banner and a nativity scene in a park owned by a nonprofit organization. Noting that “[t]here is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789,” the [Supreme] Court upheld the display, the creche included. Essential to this conclusion was an assessment of all of the symbols in the display. Otherwise, a “[f]ocus exclusively on the religious component of any activity would inevitably” stack the deck against faith-based symbols. In the context of all components of the display, the presence of the creche “depicts the historical origins of this traditional event long recognized as a National Holiday.” “[W]hatever benefit [there was] to one faith or religion or to all religions [was] indirect, remote, and incidental.” The display was “no more an advancement or endorsement of religion” than the recognition of Christmas as a national holiday or the display of “religious paintings in governmentally supported museums.”
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The Foundation separately argues that the City violated its free-speech rights when it refused to add the Winter Solstice sign to the display. As the Foundation reads the First Amendment, it requires the City, having opted to create a holiday display, to include competing messages and viewpoints. As we read the First Amendment, it does not.
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If strict neutrality were the order of the day when the government speaks for itself, as opposed to regulating the speech of others, the United States Postal Service would need to add all kinds of stamps, religious and nonreligious alike, to its December collection. Veterans’ Day would lead to Pacifism Day, the Fourth of July to Non-Patriots Day, and so on. Beyond ways to commemorate this or that important event, the government would face even greater problems in promoting its own policies. Could it urge people to “Register and Vote,” “Win the War,” “Buy U.S. Bonds” or “Spay or Neuter Your Pets” without incurring an obligation to sponsor opposing messages? Doubtful. “Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist.”
