Michigan judge: County can bar nativity scene

In a case stemming from a Freedom From Religion Foundation complaint in 2008 on behalf of its Michigan members, a federal judge has dismissed a man's lawsuit against the Macomb County Road Commission for barring a highway nativity scene.

U.S. District Judge Gerald E. Rosen ruled April 19 in Detroit against plaintiff John Satawa's attempt to keep erecting a holiday crèche that stood almost 10 feet high in the median of Mound Road in Warren.

After FFRF's complaint, written by Senior Staff Attorney Rebecca Markert, the Road Commission investigated and found Satawa had no permit. The board refused to issue one on the grounds that the crèche was a traffic hazard and amounted to an unconstitutional endorsement of religion.

Satawa then sued the county in 2009, alleging an Establishment Clause violation and violation of his right to free speech. FFRF filed an amicus brief supporting the commission. While the dispute has been litigated, the nativity scene has been displayed at St. Anne's Catholic Church.

In his ruling, Rosen found no First Amendment violation. "Concern for public safety constitutes a reasonable, viewpoint neutral reason for excluding speakers from a nonpublic forum." Rosen said he visited the site to confirm it was a potential traffic hazard.

The judge noted that the church lawn was a viable site, "since, as Mr. Satawa admitted in his deposition, St. Anne's Church just a few hundred yards from the proposed median site offered to permit a prominent display of the crèche on Mound Road and with virtually no public safety implications, as it did in past years when it was not possible for plaintiff to display the crèche in this median."

Rosen also dismissed the claim to an Establishment Clause violation. "A reasonable observer here would not find that the Road Commission's policy of not permitting the placement of temporary structures in the medians of major roadways conveys a message of endorsement or disapproval of religion."

Traffic counts at the site showed more than 82,000 vehicles a day used the road at speeds in excess of 50 mph at times.

Annie Laurie Gaylor, Foundation co-president, applauded the ruling. "This ruling appropriately ensures that our public highways should be free from religious displays which confer government endorsement of Christianity and those which pose a significant safety hazard!

"This was one of Rebecca's early victories, and we're pleased it has not been overturned," Gaylor said. "FFRF is grateful to Danielle Hessell of Butzel Long law firm in Michigan for her pro bono assistance."

Freedom From Religion Foundation

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