By Rory Gray, Alliance Defending Freedom Litigation Counsel
Religious liberty received an early Christmas present a few weeks back when the Sixth Circuit Court of Appeals issued its opinion in Freedom from Religion Foundation, Inc. v. City of Warren. The opinion gives a new take on what is now a familiar legal story. The City of Warren, Michigan put up a holiday display in its civic center that included a smorgasbord of nonreligious items, including ribbons, ornaments, reindeer, wreaths, elves, gift boxes, etc., and one religious one—a nativity scene. True to form, the Grinch more commonly known as the Freedom from Religion Foundation (“FFRF”) turned up to complain that the nativity scene violated the Establishment Clause. But the city mayor stuck to his guns and refused to remove it. So FFRF tried a different tack; it submitted a large sandwich-board sign for inclusion in the display that, among other festive gems, proclaimed that:
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world,
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.
Clearly recognizing FFRF’s sign for what it was, a venomous attack on religion designed to scuttle the holiday display altogether, the city mayor refused to include it. FFRF then filed a lawsuit. The district court ultimately rejected FFRF’s arguments and so did the Sixth Circuit.
In an excellent opinion written by Judge Sutton, the Sixth Circuit explained that a “nativity scene, when accompanied by [a] collection of secular and seasonal symbols, does not amount to an establishment of religion or for that matter an impermissible endorsement of it.” Indeed, this argument seems rather silly in light of the fact that the Supreme Court has proclaimed that “We are a religious people whose institutions presuppose a supreme Being” and Congress has enacted “a law devoted to spiritual matters … called the Religious Freedom Restoration Act, all without violating the Establishment Clause.”
The clear lesson of this story is that “when government speaks for itself,” “strict neutrality” is not required. Otherwise, the postal service couldn’t add a religious Christmas stamp without designing a nonreligious counterpart, “Veterans’ Day would lead to Pacifism Day, the Fourth of July to Non-Patriots Day, and so on.” That is not the law. Government is free to keep items, like FFRF’s sign, out of its holiday display and may “choose to add a nativity scene (so long as it did not violate the Establishment Clause)” or “add an angel,” while “keep[ing] out a devil.” “[A]ccountability” for these choices is “through the democratic process.”
So if your town sponsors a holiday display next December, advocate for a nativity scene to be included. Each one is an important reminder that Jesus is the reason we celebrate Christmas, not Rudolph however charming his bright nose. And as an added benefit, nativity scenes in public displays visibly deny the strict “separation of church and state,” which is a mirage built of groups like FFRF’s wishful thinking, not the First Amendment’s text.