An appeals court ruled today that a Michigan mayor can censor nonreligious speech, while continuing to endorse a nativity scene in the city atrium.
A 3-judge panel of the U.S. Circuit Court of Appeals for the Sixth Circuit ruled against the Freedom From Religion Foundation's fight against city hall censorship at Christmastime.
"The Sixth Circuit incorrectly characterized this case as a religious-symbol-on-government-property case, when in reality this case is about free speech," noted FFRF Senior Staff Attorney Rebecca Markert.
Mayor James Fouts of Warren, Mich., routinely placed a nativity scene in the Warren Civic Center, a primary municipal building also containing the public library. FFRF and one of its members, Douglas Marshall of Warren, wrote letters protesting the display. On Dec. 8, 2010, Fouts wrote FFRF that "all religions are welcome to celebrate their religious seasons with a display in city hall." Marshall tried in vain repeatedly to obtain permission to place an FFRF winter solstice sign in the city hall atrium.
FFRF's winter solstice sign, specifically coined to counter religious displays on government property, reads:
"At this season of the Winter Solstice, let reason prevail. 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."
In December 2012, Fouts called FFRF's sign "highly offensive," and compared FFRF's request to place its sign saying "there are no gods," to putting up a "sandwich board saying that there is no Santa Claus." Fouts stated: "I cannot and will not sanction the desecration of religion in the Warren City hall atrium."
"We are not a Christian nation. Under our secular constitution, city governments should be forbidden to endorse one religion over another, or religion over nonreligion, much less sitting in judgment of what is or isn't a 'desecration' of religion," said FFRF Co-President Annie Laurie Gaylor.
FFRF filed the lawsuit after the mayor invited other individuals and organizations to place items in the atrium of city hall, and after the mayor denied FFRF's request based solely on its Winter Solstice message — a fact completely ignored by the 3-judge panel of the Sixth Circuit.
The panel found the holiday display to be government speech, but fails to reconcile this decision with its recently-decided Satawa ruling in May 2012, which allowed a private individual to erect a large nativity scene on the median of a highway in Michigan, calling it a public forum. Douglas Marshall placed a banner last December on the median, although it was tampered with, then stolen.
Judge Sutton, who wrote the opinion, is considered one of the most conservative judges on the Sixth Circuit.
All three judges were appointed either by Bush I or Bush II. A New York Times analysis of appeals court appointees last fall showed that 63% of the appointments on it were made by Republican presidents.
FFRF asked the court to enjoin the mayor from barring the FFRF sign, and find that the city had violated the rights of FFRF and its member.
Sutton wrote that "a government may provide benefits to faith-based entities if the benefits are available to secular and religious entities alike," clearly contradicted by Fouts' action, or "may invoke the divine through words and symbols if they have religious and historical meanings or faith-based and solemnizing effects, and in the process offer at most incidental benefits to any one faith or to faith in general."
The decision makes no note of Fouts' declaration of the atrium as a public forum for religion, but decides the case based on the Lynch v. Donnelly decision (reindeer by a nativity display supposedly removes the religious message). Sutton also quotes Justice William O. Douglas declaring, "We are a religious people whose institutions presuppose a Supreme Being" in a 1952 case. But Sutton failed to add that in the very next sentence, Douglas added: "We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary." Zorach v. Clauson, 343 U.S. at 313-314.
Justice Douglas explained his statement in McGowan v. Maryland, 366 U.S. 420, 563 (1961):
"[I]f a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others...
The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish — whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind government must be neutral."
In 2004, FFRF won a solid victory in the Sixth Circuit in Doe v. Porter, a case successfully challenging devotional religious insruction in Dayton, Tennessee elementary schools, conducted by bible students.
"We extend our our warmest gratitude to plaintiff Douglas Marshall, and to our pro bono counsel Danielle Hessell," said FFRF Co-President Dan Barker. FFRF intends to seek review by the entire Sixth Circuit panel.
Read original complaint with exhibits of Fout statement