Protecting the constitutional principle of the separation of state and church
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Freethought Today

Vol. 11 No. 1 - Published by the Freedom From Religion Foundation, Inc. -
January/February 1994

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Oral Arguments Heard

Third Round In Wisconsin Creche Suit

By Annie Laurie Gaylor

Oral arguments were heard in Pat and Joseph King v. Village of Waunakee before the aWiasconsin State Supreme Court on January 7, 1993. Representing the Kings in the Foundation-funded suit was Bronson LaFollette, former attorney general of Wisconsin. Representing the Village of Waunakee was Craig Parshall, an attorney with the conservative Christian Rutherford Institute.

LaFollette argued that the case could be decided on state constitutional issues: "Federal constitutional issues should be avoided if the case can be decided on state constitutional grounds."a

LaFollette cited Article I, Section 18 of the Wisconsin Constitution, which provides that "the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."

The Village of Waunakee, he noted, spends $500-$600 a year to maintain a nativity scene.

He cited as analogous the successful suit against the maintenance of Desert Christ Park in California by a county, in which "the California Supreme Court held that maintenance of a religious display in a county park violated that provision of the state constitution."

He noted that since there is no state precedent on a challenge of a religious display, "it is proper and necessary for the court to refer to federal constitutional cases involving direct expenditure," citing Weiss v. District Board which struck the purchase of bibles for use in Wisconsin public schools. He quoted Judge J. Cassoday from Weiss:

" . . .Wisconsin, as one of the later states admitted into the Union, having before it the experience of others, and probably in view of its heterogeneous population . . . has, in her organic law, probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization, or society than any other state in the Union." (1890)

A key issue in the lawsuit is the Village's contention that it "got around the law" by hastily erecting a so-called "salute to liberty," and adding lights to the evergreens growing in the park.

The sign reads as follows:

"During The
Holiday Season
The Village of Waunakee
Salutes Liberty
Let These Festive Lights & Times
Remind Us That We Are The Keepers
Of The Flame of Liberty And Our
Legacy of Freedom. Whatever Your
Religion Or Beliefs,
Enjoy The Holidays."
--Waunakee Village Board

LaFollette noted: "The village board has erected this display for the last 40 years without any adornment whatsoever" until a lawsuit was threatened.

The first argument in favor of the village-maintained nativity scene made by Craig Parshall was to mention "In God We Trust" on U.S. currency. The Chief Justice also alluded to the Latin crosses on a mural in the Supreme Court chambers showing "members of clergy," as well as the huge lighted Christmas tree visible from the room that was still in the Capitol rotunda at the time of the hearing.

Parshall quoted a former Supreme Court Justice saying: "We are a religious people." He said the Lynch decision required "avoiding an absolutist view" of the Establishment Clause.

When Justice Shirley Abrahamson asked him if a creche by itself, without the added disclaimer and lights, would be unconstitutional, Parshall hedged, saying it would be inappropriate in a nonholiday context or if it were a permanent feature, or in a building. The Waunakee creche, he argued, is acceptable since it is in a public park, "not a core government building," during the holiday seasons and is a "temporary fixture."

"I don't think this display is an endorsement of Christianity," Parshall added.

Parshall called it a "passive symbol, not a government activity," saying a "free exchange of ideas" can be made in a public park or forum "without saying this is the official state view." He called the $500-$600 a year a "minimal expenditure--not every benefit to religion is unconstitutional if indirect or remote." He also said Christmas has "attained cultural status," again noting the minting of "In God We Trust" on money as another example.

Justice Abrahamson noted that the 7th Circuit Court of Appeals just ruled a crucifix in an Indiana park unconstitutional. Before that could be discussed, the Chief Justice praised the Village of Waunakee for trying "to conform" to the 1989 Allegheny decision (which ruled a creche on courthouse grounds improper, but said a menorah by a Christmas tree with a disclaimer was okay). The Chief Justice said the village "handled it in an even-handed way," adopting language in the disclaimer "more inclusive than Allegheny."

Parshall then claimed the three lighted evergreens growing in the park "dwarf the Nativity scene." Abraham quickly noted the Christmas trees were not cut, but merely represented natural trees with lights on them, and asked if the lights on them are visible during the day. Parshall responded, "Without the sign and decorations, under Allegheny, the court would be without much guidance."

Parshall downplayed the three-pronged Lemon test, urging the Supreme Court to use the "more forgiving" test of "coercion" here.

In his rebuttal, Bronson LaFollette said that the Allegheny case "does not permit the display in Waunakee." He noted that the majority and concurrence determined that the Christmas tree and menorah were two secular symbols, representing pluralism, with a sign "simply revealing what the display showed."

"In Waunakee we don't have two secular displays," but a display of the "predominant religion."

"The sign can't reveal what the display does not show." He further objected to the addition of language with a "religious connotation," namely, "Whatever your religion or beliefs, enjoy the holidays."

He also cited Doe v. Small wherein a federal Illinois court had ruled that distance from city hall does "not diminish" the impact of entanglement.

A decision is expected by the conservative, elected court in June.



January/February 1994 Excerpts