On behalf of a local member, the Freedom From Religion Foundation filed a federal lawsuit on Dec. 22, 2011, in the Eastern District of Michigan, Southern Division, charging Mayor James R. Fouts, of Warren, Mich., with government censorship of its nonreligious views and unlawful endorsement of religion. FFRF sought a preliminary injunction to enjoin the mayor from continuing to establish religion “by allowing public displays of only religious symbols” and to order him to allow placement of FFRF’s Winter Solstice display. The lawsuit, FFRF v. City of Warren, was filed by the firm of Butzel Long in Bloomfield Hills, Mich., which is representing both FFRF and its member plaintiff pro bono. FFRF alleges censorship, establishment of Christianity and denial of equal protection under the law by the city of Warren.
The mayor responded to a demand letter sent by attorney Danielle Hessell with a letter that called FFRF’s sign “highly offensive.”
Fouts, amusingly, 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 it the Warren City hall atrium.”
The legal complaint summarizes the chronology of the mayor’s endorsement of religion and censorship of the views of FFRF and its member Douglas Marshall of Warren, a named plaintiff. FFRF complained about the nativity display in the city hall atrium more than a year ago, eventually receiving a response on Dec. 8, 2010, in which Fouts wrote 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 the FFRF sign in the city hall atrium.The complaint called Fouts’ denial of a permit to Marshall “an unconstitutional, content-based restriction on plaintiffs’ expression in a traditional public forum.” As the Supreme Court has held, “a principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion.” The mayor’s preference for the nativity display, and discriminatory practice against the plaintiffs also denies them equal protection under the law.
“As a result, Defendants send a clear message to Plaintiffs that they are outsiders and not full members of the political community, and an accompanying message that those who favor the Christian religion are insiders and favored members of the political community," charges the Complaint.
FFRF asks the court to enjoin the mayor from barring the FFRF sign, to find that the city has violated the rights of FFRF and its member, and to award nominal damages and reasonable attorney’s fees.
On May 31, 2012, U.S. District Judge Lawrence Zatkoff issued a ruling granting the city’s motion for summary judgment. FFRF has appealed this decision to the 6th Circuit Court of Appeals.
On February 25, 2013, a 3-judge panel of the Sixth Circuit Court of Appeals affirmed the decision of the district court. In an opinion authored by Judge Sutton, the panel found Warren's display to be permissible government speech.