Yesterday a U.S. District judge, declaring that the Foundation and its Green Bay plaintiffs have already won," have a "concrete victory" and a "real-life victory," declared moot FFRF's lawsuit against a manger scene atop Green Bay City Hall.
Today, Green Bay Mayor Jim Schmitt indicated, as promised, that he would be asking the City Council to adopt a secular policy this month, although details are sketchy.
Then-Council president Chad Fradette last December, in what the Green Bay Press Gazette called a "reckless action," with agreement of city aldermen, placed a nativity scene atop the city hall entrance. Fradette dared the Freedom From Religion Foundation to sue. Many residents, upset over the action, some of whom were denied the opportunity to place their own nonChristian displays and one whose brief display was vandalized, contacted the Foundation, urging it to sue. The Foundation sent a demand letter to the city making clear it would sue if the manger scene stayed up and the city did not adopt a secular policy.
Just before Christmas, the council adopted a "moratorium" on displays--except for the existing 2007 manger scene, until a city policy was adopted. The Foundation, unable to file a lawsuit on Dec. 24, 2007 because Pres. Bush last year ordered all federal buildings closed on that date, filed suit on Dec. 26, a few hours after the nativity scene was taken down for the season.
Although the Green Bay City Council said it would adopt a policy, it did nothing through this fall.
U.S. District Judge William C. Griesbach, in his 23-page decision, although conceding that the Foundation had a "real-life victory," disturbingly refers to the nativity scene as a symbolic depiction of "the historical event" of the birth of Jesus.
"The Christian legend about the supposed birth of its savior is no more 'history' than the claims that Joseph Smith was given golden tablets by the angel Moroni, or claims that Paul Bunyan and his giant blue ox roamed America," said Foundation co-president Dan Barker. "It concerns us to see one religion's assertions claimed as fact in a federal court decision."
Annie Laurie Gaylor, Foundation co-president, said she also took issue with Judge Griesbach's hostile passage complaining that erring governments sued over state/church violations must pay costs and attorney fees if they lose the case. Griesbach said this "creates a strong incentive for budget-conscious local governments to accede to demands from groups like the plaintiffs that government buildings and other property be cleansed of all signs and symbols of the country's religious heritage."
(In fact, when erring governments being sued correct violations prior to a decision, attorneys fees are no longer automatically covered, due to a recent ruling by the Supreme Court which Congress has not yet remedied. Gaylor said that public officials who freely violate the Constitution ought to be subject to more penalties, not fewer.)
"The judge also says it is 'uncertain' how the violation in Green Bay would be addressed by Supreme Court precedent, even though County of Allegheny v. ACLU-Pittsburgh (1989) explicitly barred a creche from the entrance of a core government building," Gaylor added.
The Foundation took issue with parts of the judge's narrative of the actions leading to the lawsuit, in which he seems to imply that Fradette acted as a rogue, rather than with Council and mayoral support.
"We warmly thank all of our brave Green Bay plaintiffs, of diverse religious and nonreligious views, for standing up for the Constitution and going on the record. This case could not have brought without them. While we think the decision declaring the case moot was premature, it is looking very hopeful that the victory the judge says is ours already will soon be confirmed."
"We also consider this a moral victory--with the Green Bay Press Gazette editorializing strongly against the City Hall action, with clergy who recently met with the mayor urging him to leave religious celebrations out of City Hall, and with the outpouring of concern and support by Green Bay residents dismayed by the ugly divisiveness the actions of Fradette, the mayor and City Hall created last December."
The Foundation says it will monitor City Council action and is prepared to go back to court if the policy adopted is not constitutional.