Wisconsin State Supreme Court Approves Village Creche In Foundation-Funded Lawsuit (June/July 1994)

Vol. 11 No. 5 – Published by the Freedom From Religion Foundation, Inc. – June/July 1994

“Protecting The Rights Of The Majority”

The State Supreme Court of Wisconsin ruled that a village-owned, maintained, and lighted creche in a public park is constitutional, in a shocking 5-2 decision issued on June 22.

The State Supreme Court upheld decisions by the Court of Appeals and the trial court, approving a creche owned and erected by the village of Waunakee, Wisconsin, for the past 40 years. The seven foot tall display includes a star of Bethlehem hoisted atop a flagpole. The Foundation complained about the creche in 1990, joined by Waunakee residents Patricia and Joseph King. The Foundation has funded the lawsuit on their behalf. Since filing the challenge, the Kings felt compelled to sell their Waunakee home and leave the village, following harassment, shunning and threats.

The 36-page decision, written by Justice Roland Day, was characterized as “a rambling opinion” in a news story by Cary Segall of The Wisconsin State Journal. Reporter Pat Schneider of The Capital Times concurred with that assessment, adding in her write-up that the ruling is unusual in that it is “studded with exclamation points.”

Day wrote that the decision is a “vindication” for “the rights of the majority,” referred to the “historical origin” of the birth of Jesus, and compared a creche to “ceremonial deism.”

Day digressed for four pages over the origins and history of the creche, even referring to “baby Jesus.” “It almost reads like a Sunday school lesson,” staff member Dan Barker told The Capital Times. Day even commented on and commended the “pervasive religious atmosphere” and “many prayers” at the 50th anniversary commemoration of D-Day in Normandy.

Day interpreted the County of Allegheny v. ACLU case from 1988–in which a divided high court nixed a creche on the steps of the Pittsburgh courthouse but permitted a menorah next to a Christmas tree on public property–as permission for the village of Waunakee to erect its annual creche. The high court had ruled that the menorah with the Christmas tree was permissible since it represented diverse viewpoints. The Wisconsin Supreme Court claimed that this diversity was also displayed in Waunakee, since the village lighted some evergreens growing in the park, and had added a “disclaimer,” following the Foundation’s complaint, based on a sign posted by the Pittsburgh menorah. (“During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.”)

The village of Waunakee adopted the wording of this disclaimer, but added this phrase: “whatever your religion or beliefs enjoy the holiday.”

“This is like saying whatever your beliefs, this is a Christian park. It has a nose-thumbing, mocking tone,” noted Foundation president Anne Nicol Gaylor. Attorney Bronson LaFollette, former Wisconsin Attorney General, argued on the Kings’ behalf that the disclaimer “runs afoul of the Endorsement test” by excluding nonbelievers, citing standard dictionary usage of the word “belief.” Day dismissed this argument with a terse: “Some nits aren’t worth picking!”

Ironically, while insisting that “a majority of the present court would approve the Waunakee holiday display,” Day mainly quoted U.S. Supreme Court Justice Kennedy, who issued a bitter minority dissent over the finding in Allegheny that a city-owned creche display was unconstitutional.

Day also wrote that the Waunakee case was similar to the Lynch case, in which the U.S. Supreme Court ruled ten years ago that a small city-owned creche was permissible among a huge display of such items as Santa, reindeer and candy canes in Pawtucket, Rhode Island. However, the Waunakee creche stands alone with its star, manger, lights and “disclaimer.”

He roundly rejected the plaintiffs’ argument that the village creche violates Art. I, sec. 18 of the Wisconsin Constitution prohibiting government from compelling citizens to support any place of worship, to show any preference by law for religious establishments or modes of worship, or from drawing any money from the treasury for the benefit of religious societies. The village spends at least $500 a year in lighting and maintaining the display.

He concluded the decision with his “vindication” of the “rights of the majority.”

A thorough dissent written by Chief Justice Nathan Heffernan (printed in full below), joined by Justice Shirley Abrahamson, eloquently charged that the Wisconsin Supreme Court would be violating “our oath to support the constitution of Wisconsin” to conclude that the more stringent state constitution must be interpreted identically with the Establishment Clause of the First Amendment.

Wrote Heffernan:

“It cannot be disputed that the creche is a religious symbol portraying an event central to the Christian faith. Christians believe that God sent his son, Jesus Christ, into the world to be the Savior. The annual celebration of Christ’s birth is one of the holiest days of the year for Christians. Christians believe that Mary gave birth to Jesus Christ in a stable in Bethlehem. The creche is a symbol of Christ’s birth and has no secular connotations. Indeed, any suggestion that the creche is secular in nature denigrates both the religious symbol and the Christian faith.”

Heffernan agreed with Bronson Lafollette’s argument that the case should be decided based on the state constitution, not on the federal constitution, and found the village-supported creche an unconstitutional “expression of preference for one religion” and an unconstitutional expenditure of tax money. He wrote: “The religious freedom of all citizens is threatened when the government expresses a preference for any one religious practice.”

Commenting to the Wisconsin State Journal, Anne Gaylor called the decision an “outrageous” ruling of a “right-wing religious court.”

“Justice Day had the audacity to talk about protecting the rights of the majority when it was the minority who were harassed.”

She announced the Foundation will be seriously considering whether to fund an appeal to the U.S. Supreme Court, the only remedy left to the Kings.

The Capital Times editorialized on June 24 against the court, and the blurring of “the lines between the sacred and the secular.” Criticizing Day for calling the creche situation an example of “how the courts must enforce and protect even the rights of the ‘majority,'” the Capital Times pointed out: “Actually, the Bill of Rights was crafted to protect the rights of the minority from tyranny by the majority.”

Joining the outcry against the creche decision was The Milwaukee Journal, which said the village-owned creche “telegraphs insensitivity to members of other religions and to nonbelievers as well.”

Excerpt of Majority Opinion:

“Vindication of Rights of the Majority

What we have in the Waunakee case is a recognition that Christmas has its historical origin in the birth of Jesus. As was noted in Lynch recognition of that history in a nativity scene constitutes a “secular purpose” that meets the requirements of “secular purpose” set forth in Lemon, cited in Lynch. What we see is over a thousand year history of a mixture of pre-Christian elements and cultural additions to the holiday that has often converted originally “religious” personages and symbols into secular ones through usage.

Out of this mixture created by society’s desire to celebrate its heritage–and its hopes–we have seen that some “religious” elements that are part of the history do in fact meet the most recent interpretation of the Establishment Clause, i.e., the endorsement test. Recognition is not the same as endorsement. The “salute to liberty” sign in Waunakee as in Pittsburgh makes that point clear.

This vindication is an example of how courts must enforce and protect even the rights of the “majority”. . . .

Freedom From Religion Foundation