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Annual season for attacking Nativity scenes now underway



Legal battles over Nativity scenes seem to have become as much of a Christmas tradition as decorating the Christmas tree or singing carols. Unfortunately, the American Civil Liberties Union (ACLU) decided to start its celebration early this year, filing suit against Fulton County, Indiana, on behalf of a plaintiff who doesn’t even live there.


ACLU Indiana wants the Nativity scene at the Fulton County Courthouse removed, even though the display has been put up every year since 1980.


The ACLU has filed a preliminary injunction on behalf of Roger LaMunion to stop the display of the Nativity scene. LaMunion filed a lawsuit in 2018 claiming that the display, which also contains depictions of Santa Claus and snowmen, violated the Establishment Clause by “advancing one preferred religion over all others.” He said that the decorations “sit on the southwest side of the courthouse, off of busy Main Street,” and claimed that his trips to the area brought him into “direct and unwelcome contact with the display.”


Liberty Counsel filed a brief opposing the injunction, stating:


“Although two Christmases have already come and gone since he sued, Plaintiff now belatedly seeks a preliminary injunction — an extraordinary and drastic remedy — to ban the Display’s Nativity scene during the upcoming holiday season. Plaintiff’s nearly two-year delay in seeking relief, for which he has no justification, is reason enough to deny his untimely motion.”


The brief argued that not only has LaMunion delayed, but he is not a resident of the county and has shown no injury. What’s more, the Supreme Court has ruled that Nativity scenes are acceptable if integrated with other holiday decorations.


The brief reads:


“Aside from his inexplicable delay, Plaintiff also fails to meet the four factors for a preliminary injunction. First, Plaintiff is unlikely to prevail on the merits of his claim. At the outset, Plaintiff is not even a resident of Fulton County, and he has utterly failed to demonstrate that he has Article III standing to bring this action. He has alleged no facts to support a finding that he has suffered any present or even potential legally cognizable injury as a consequence of the Display. He has not altered his conduct one whit. His mere offense at seeing a religious display on government property is constitutionally insufficient to support federal court jurisdiction.”


The brief continues, “Plaintiff will not suffer irreparable harm without an injunction. Now that Christmas is around the corner, Plaintiff tries to manufacture a sense of urgency to justify his request for emergency relief.”


Later it reads,


“Third and fourth, the balance of harms and the public interest, which merge when the government is the defendant, strongly weigh against injunctive relief. Banning a local community treasure that has been in place without incident or complaint for well over four decades, to appease an out-of-county plaintiff with an ideological ax to grind, does nothing to further the public interest. Instead, enjoining the Display would send an impermissible message to the local community of government hostility. Plaintiff’s motion for a preliminary injunction should be denied.”


Liberty Counsel Chairman Matt Staver further explained, “Publicly sponsored Nativity scenes on public property are constitutional, especially when the display includes other secular symbols of the holiday. This Christmas display in Fulton County is no exception. Every year, the ACLU unsuccessfully attempts to prove that it is wrong on the law.”


It is a sad tradition that the ACLU feels it necessary to wage war on Nativity scenes each year. Their faux outrage is meant not to prevent the government establishment of religion, but to remove Christianity from every corner of public life. For nearly 40 years Fulton County has had a Nativity scene and residents did not complain and the government did not place any burden on anyone’s religious freedom — but a non-resident was offended, so sure, let’s just take away everyone’s right to religious expression.


In 2020, when the world has been turned upside down by the COVID-19 pandemic and civic strife, the ACLU seems to think that the greatest threat to liberty is a Nativity scene. The reality is that what we all could use this year is a little peace on Earth and goodwill — not another attack on our way of life and traditions. Maybe just this once, for a change, the ACLU might consider letting people enjoy the sense of hope and wonder that the Christmas story brings.


How should we anticipate this case to play out?


If Supreme Court precedent is to be considered, then the Fulton County Nativity scene will be safe. The Supreme Court has heard this song sung before, more than once, and the difference in the case’s rulings is imperative. In 1984, the Court ruled 5-4 in Lynch vs. Donnelly that a Pawtucket, Rhode Island-Nativity scene erected on public grounds did not violate the Establishment Clause of the First Amendment, since the message of the creche did not isolate Christianity, or any religion, as the only sectarian base. If the manger scene was the only display, it would not pass. But since the manger scene was accompanied by non-sectarian Christmas imagery such as reindeer, snowmen, etc., the Nativity scene was allowed.


Contrast the Lynch decision to the 1989 ruling in County of Allegheny vs ACLU where the Court ruled 5-4 against a Nativity scene. At this point, Justices Scalia and Kennedy have joined the Court after Chief Justice Burger and Justice Powell retired after the Lynch case. The Court ruled against the display of a Pittsburgh-area Nativity scene not as a reversal to the Lynch decision, but in tandem with the reasoning behind the Lynch decision. In Lynch, the Fulton County Nativity scene was not exclusive to one sectarian position, given its inclusion of non-Christian characters, and was thus deemed permissible. Whereas the Pittsburg-area Nativity scene challenged in County of Allegheny was exclusively Christian, given its display of “Glory to God for the birth of Jesus Christ” and its lack of non-Christian characters.


That said, the current legal challenge by the ACLU in Indiana should play out well for the Nativity scene since it does not exclusively promote Christianity, as it is accompanied by other-than-Christian Christmas imagery.