ACLU Files First Amendment Suit Challenging Nativity Scene

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December14, 2014;Indianapolis Star

With Christmas a little more than a week away, a small town in Indiana is fighting to display their baby Jesus in a manger, Mary and Joseph (don’t forget the Magi) in the town’s now much disputed nativity scene on public property.

Residents in Brookville, Indiana have been assembling a nativity scene outside the county courthouse for almost 50 years. As per tradition, the volunteers collect donations to repaint the figurines and then display the statues each year just after Thanksgiving.

However, for the past four years, Freedom From Religion Foundation (FFRF), a nonprofit based in Wisconsin, has been challenging the town’s right to display the nativity scene on public property as a violation of the First Amendment and finally launched a lawsuit through the American Civil Liberties Union of Indiana. The argument being that the placement of the nativity scene on government property acts like an implicit endorsement of religion, as a violation of the “separation between church and state.” 

“Any reasonable person viewing this display would conclude that its principal effect is to advance religion,” said Gavin Rose, staff attorney at the ACLU of Indiana in a news release. “The First Amendment protects these kinds of displays by individuals and groups on private property but also makes clear that displays on public property, which is maintained by taxpayers, cannot demonstrate a preference for religion.”

In response, the residents started a petition to keep the nativity scene in place as well as an online campaign that has gained more than 10,000 members.

 The County Commissioner Tom Wilson does not believe any violation has occured. Wilson, who has ignored FFRF’s letters, says the display is the residents’ expression of speech and covered under their constitutional right to freedom of religion.

“It’s [the residents’] property. They’re taxpayers and they pay for it,” he said. “We’re not trying to push our religion on anyone here in Franklin County. We’re open to all forms.”

But Wilson’s wrong. It’s the government’s property, not the residents’. And the issue isn’t which religion is being showcased in the scene, but that any religion is displayed at all. However, is he also wrong that the display is covered under the residents’ constitutional right to freedom of religion, despite its placement? 

Well, the Supreme Court has been fairly vocal about keeping religion in its place, which is far and away from governmental institutions. Of course, this would exclude the various mentions of a monotheistic God on both our currency and in the Pledge of Allegiance.

While there is no quote-for-quote phrase in the constitution that requires “separation between church and state,” the First Amendment does say, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Meaning, the government will neither prevent the expression of religious beliefs nor will it in any way endorse a religion. The Supreme Court has also championed the “separation” in a number of cases over the last several decades. 

Long after the famous Scopes “Monkey” Trial (1925) in which a public school teacher was prosecuted for teaching evolution, in McCollum v. Board of Education (1948), the Court decided religious instruction in a public school violated the Establishment Clause quoted above, where a state and government-funded organization would have a position on religion. A similar ruling in Murray v. Curlett (1963) found schools could not read the Bible over the intercom in what were essentially religious ceremonies, and force students to participate in the reading. A decade later in Lemon v. Kurtzman (1971), the Justices established a three-prong test to determine whether a religious action violates the First Amendment, one of which prohibits “excessive entanglement” between government and religion. 

Perhaps most pertinent to the Brookville case, the Court decided in Allegheny County v. ACLU (1989) that a nativity scene placed inside a government building and the menorah outside the building was a violation of the Establishment Clause.

Given the precedent, it would appear FFRF does have grounds to be asking Brookville to remove the nativity scene.

But, the courts’ opinions in these cases seem to differ from the public. A study released just a few days ago by the Pew Research Center’s Religion and Public Life Project addresses the very question of religious symbolism on public property, much like the dispute in Brookville. The study found 44 percent of Americans think Christian symbols like the nativity scene should be allowed on governmental property. Another 28 percent believe such imagery should only be allowed if it is accompanied by symbols from other religions, like a menorah of Hanukah. Only 20 percent believe there should be no religious displays on government property.

Many would likely argue what would be the harm in letting this small, suburban town tucked away between the Great Lakes display their nativity scene. Unfortunately, the law doesn’t make any such arbitrary allowances, and nor should it.

Despite the Pew Research Center’s study’s results, the FFRF receives about 2,000 complaints nationwide about cases just like Brookville, where it does appear there could be a mingling, even if unintended, of religion and the government.  –Shafaq Hasan

  • Scott Walter

    “the Supreme Court has been fairly vocal about keeping religion in its place, which is far and away from governmental institutions. Of course, this would exclude the various mentions of a monotheistic God on both our currency and in the Pledge of Allegiance.”

    This careless phrasing makes your meaning hard to discern, but presumably you realize the Supreme Court has refused to strike down “In God We Trust” from the nation’s currency and has also refused to strike down “Under God” in the Pledge. That causes problem for your erroneous assumption that the First Amendment requires government at all levels to censor religious expression out of the public square.

    Anyone who wants to learn the truth about this subject, including its history at the Founding and in case law, should read the definitive account provided by prof. Philip Hamburger in his book Separation of Church and State.

    Hamburger, by the way, is not a Christian, he teaches at Columbia Law, and his book was published by Harvard University Press. In the concluding chapter, he writes, “precisely because of its history–both its lack of constitutional authority and its development in response to [mostly anti-Catholic] prejudice–the idea of separation should, at best, be viewed with suspicion.” He adds, “The separation of church and state not only departed from the religious liberty guaranteed by the U.S. Constitution but also undermined this freedom.”

    Another useful source is the Becket Fund for Religious Liberty, at They have successfully defended in the courts, among other things, “Under God” in the Pledge.

  • David Ivester

    Hamburgers’ fundamental error is his largely unspoken and unexamined presumption that the Constitution’s separation of church and state is merely a First Amendment textual matter. It is rather a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    Nor can the principle be dismissed merely as an anti-Catholic KKK idea. Hamburger points to statements by KKK supporters favoring the separation of church and state, leaving readers to draw the inference that the principle is somehow born of those sharing their prejudices. He glosses over that the principle has long been so widely supported in American society that one could find and offer such statements supporting the principle from nearly every and any quarter. (Recognition of that may lead to inferences quite different than the one that Hamburger’s narrower, selective focus suggests.) The further notion, advanced by some, that the Supreme Court’s recognition of the constitutional separation of church and state in Everson is all Justice Black’s doing as part of some KKK anti-Catholic conspiracy is laughable. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.